Articles, Newsletters and Advisories
By R. Brock Pronko
Historically, one of the biggest policy differences between Republicans and Democrats has been over labor issues such as unions vs. “right-to-work”, minimum wage, the overtime rule, graduate students’ right to unionize, limiting litigation in EOEC cases, pay transparency, equal pay for women, employee health care benefits, retirement payouts and class action waivers.
As a businessman, sometimes Donald Trump has had an strained relationship with labor unions during the construction of his hotels and golf resorts, occasionally resulting in regulatory disputes and legal battles. A probusiness president and Republican-majority Congress are now in a position to “repeal and replace” pro-labor laws enacted by President Obama and Congressional Democrats.
The President appointed as acting chairman of the National Labor Relations Board Phillip Miscimarra, who has been characterized by Democrats as an “an anti-union lawyer.” The NLRB consists of three members from the President’s party and two members from the opposition. The board currently has two vacancies that will be filled by the President, giving pro-business members the majority.
In 2007, VP Mike Pence, then a U.S. representative from Indiana, voted against the Employee Non-Discrimination Act, which aimed to prevent job discrimination based on sexual orientation. He also voted against raising the minimum wage.
Republican governors have signed “right-to-work” laws. Last month, Missouri became the 28th state to pass a “right-to-work” law. “Right-to-work” laws prohibit labor unions from requiring workers to pay dues as a condition of employment, but by federal law unions are required to provide fair representation to all workers covered by a contract regardless if they pay dues.
If confirmed, Supreme Court justice nominee Neil Gorsuch will likely vote in favor of conservative Republican policies on labor cases that come before the court.
Pennsylvania Business Central reached out to experienced and attorneys College to look at how this sweeping regime change might impact workers and employers: Amy Marshall from Babst Calland and Phil Miles with McQuaide Blasko.
PBC: What issues championed by the NLRB under President Obama are likely to be overturned by appointees of the Trump administration?
Miles: When control of the NLRB changes parties we usually see subtle shifts more than vast sea changes. For example, the Obama NLRB reversed a prior ruling and allowed certain university graduate assistants to unionize. The Obama NLRB also broadened recognition of smaller unions often called micro-or mini-bargaining units, allowed employees to petition for union elections with electronic signatures and lowered the bar for establishing “joint employment.” For example, making it easier for employees of a fast food franchise to argue that they are jointly employed by the franchisee and the franchisor. I suspect the Trump NLRB will revisit some of these battlegrounds and generally take a narrower view.
PBC: Are we likely to see an impact on the EEOC such as gender issues in the workplace?
Miles: Trump proposed paid maternity leave on the campaign trail and he even mentioned paid family leave in his recent speech to Congress. I think this will happen.
Marshall: The President tried to address the transgender issue with bathrooms in schools by throwing it back to the states. The Supreme Court kicked that case back to the fourth circuit court and said it needed to re-examine the issue by looking at Title 9, the federal civil right law that prohibits sex discrimination in education.
It doesn’t mean that gender discrimination litigation won’t move forward if there’s a case filed against a school or an employer, it just might mean that the EEOC takes a different tact on what issues they want to push and what they don’t.
PBC: The Heritage Foundation, a conservative think tank, has said that America no longer needs unions because they do not reward workers based on individual merit but treat everyone the same through collectively bargaining, which stifles creativity and individual initiative, while also causing companies to move jobs out of the country to lower labor costs.
The argument from the other side is: Great companies don’t view employees as “inputs” or “costs,” and they don’t try to pay them as little as they can to keep them from quitting. They view employees as the extremely valuable assets. Most importantly, they share their wealth with them. Pro-union advocates argue that one of the factors in the growing income inequality in the U.S. is due to the biggest companies no longer sharing their wealth with rank-and-file employees.
What’s your take on these opposing views of unions?
Miles: Is it too much of a cop out to say they’re both right? The truth is that most unions reward seniority rather than merit and make it more difficult to terminate employees who just aren’t working out because the employer usually must have “just cause” and be able to prove it in arbitration. That said, unions provide a stronger voice at the bargaining table for groups of employees that would otherwise have very little bargaining power if going it alone. Collective bargaining facilitates “sharing the wealth” and mutually agreeing to other terms and conditions of employment.
Marshall: The whole point of a union is to speak as one to make sure employees get the benefits they deserve. It works well in some industries but in others, not so well, for example, the health care industry. I’ve had clients who were union employees and their union didn’t do anything when they needed them, even though they paid into the union for the better part of their employment. In other instances, the union was helpful. Grad students should certainly receive good health benefits especially since many of them have small children.
There’s still a good reason to have unions today, because you can see many larger industries where you’ve got a certain classification of employees that without protection, management could take all kinds of actions against them that would jeopardized their employment for no good reason other than management has made a bottom line decision.