President-Elect Trump in Position to Impede Labor Movement

As seen in Crain's Cleveland Business on December 08, 2016.

So here it is…yet another article on how the unexpected Trump presidency will affect business.  This time the focus is on organized labor.

I wrote multiple articles over the past few years about how an emboldened National Labor Relations Board (NLRB) grew its reach and power under the protection of the Obama Administration.  Naturally, we would expect the pendulum to swing in the opposite direction with a Republican president and largely Republican Congress.  But this is no ordinary Republican president.  And, this is no ordinary time for the NLRB.

Unlike healthcare reform which could take literally years for President-elect Trump to unravel, the impact on labor could be felt almost immediately after he is sworn in.  Why?  Because the terms of two NLRB board members have already expired, which means President Trump will be able to fill two of the five board seats in the near-term, subject only to the approval of his Republican Congress.  Since one member of the existing board is Republican, that will provide a Republican majority quickly.  In addition, the terms of the remaining three board members will expire in three years which means that, even if Trump only survives one term, he will still be in a position to have completely overhauled the NLRB.

Perhaps the most significant issue to watch is the joint and/or single employer analysis that was formulated by the NLRB in the Browning Ferris subcontracting decision. Currently, the NLRB is litigating an extension of that doctrine in the highly publicized McDonalds case which is attempting to classify the franchisees and McDonalds as either a joint or single employer. This case will not be decided by the NLRB until 2017 at best, and by then the Board deciding it is not likely to have a liberal majority. Franchisees, businesses that employ subcontractors, and businesses that employ temporary workers should pay extra attention to this issue.

Given the depth and breadth of the NLRB’s aggressive, pro-union decisions under President Obama, there is no shortage of decisions and/or rules changes that are adverse to employer interests and that may be directly in the sights of a pro-management NLRB. Among them are: the “ambush election” doctrine; the “micro unit” decision;  a plethora of NLRB’s rulings regarding employee handbooks; the breadth of arbitration clauses; post-contract-expiration decisions; whether graduate students are employees, and the definition of supervisors.

Like most things involving the Federal government, however, many of these reversals will take time and the true impact will occur slowly.  Under President-Elect Trump, we could also see smaller budgets for the NLRB, Equal Employment Opportunity Commission (EEOC) and the Department of Labor (DOL).  That would mean employees would be more likely to have to file suits against employers on their own without agency support where permitted.  Consequently, we would expect that to lead to fewer frivolous cases being filed, which is good news for employers.  In the meantime, we can only watch to see what will happen and be ready to respond to major changes.

Marc J. Bloch is a partner in the Labor & Employment Services Group of the Cleveland-based law firm of Walter | Haverfield LLP.