War or Peace Over Collective Bargaining in the Trump Era?

With a new presidential administration – particularly when the party in power changes – usually comes a difference in whether government policies in the near future will be more employee- or employer-friendly.

However, this administration is likely set to make changes more dramatic than have been seen in the last 30 years or so. While the Obama administration was considerably more employee-friendly than other administrations in recent memory, the Trump administration has the potential to not only reverse Obama-era policies, but drastically affect how unions and employers interact with each other.

In this blog, I explore how the potentially unique dynamics of the Trump administration could affect the manner in which unions and employers conduct collective bargaining negotiations.

Structure of Collective Bargaining Unlikely to Change, But Challenges Seen Coming

The National Labor Relations Board, the federal agency that most directly affects employer-union relationships, interprets and enforces the “ground rules” for employer and union conduct at the bargaining table (and during strikes, lockouts and other labor disputes when no agreement is reached). 

Bradford Livingston, a partner and chair of the national Labor Relations Practice Group at Seyfarth Shaw LLP in Chicago, says that while the collective bargaining process itself likely won’t change, NLRB rules about the effects of certain clauses in collective bargaining agreements, such as dues deductions after contract expiration and waivers in CBAs, may change over time as a new board majority asserts itself.

Livingston pointed out that “for the past eight years when a majority of the five member agency (and its general counsel) were Democratic appointees, the board issued a host of far-reaching decisions interpreting the NLRA more broadly in favor of employees and unions.”

Now, with two vacancies on the NLRB, President Donald Trump will have the opportunity to give the Republicans a 3-2 majority and likely a more management-friendly slant on the board. “However, board precedent shifts slowly, as the NLRB typically waits to decide cases that have percolated through the lengthy unfair labor practice process rather than via rulemaking,” Livingston explained.

As to whether this new expected majority will affect how attorneys advise employers when negotiating new collective bargaining agreements with unions, Livingston says that it depends on how aggressive or risk adverse the employer may be, as well as that employer’s appetite for potential litigation. “While we expect board precedent to shift over the next several years, attorneys will be cautious before advising employers to ignore the recent decisions the NLRB has reached,” Livingston said.

New Atmosphere Could Lead to Higher Rate of Head-Butting

Both unions and employers may have a difficult time in the initial stages of the new administration determining exactly what sort of treatment unions will receive from the federal government.

Within days of taking office, Trump met with construction union leaders and announced that the U.S. would withdraw from the proposed Trans-Pacific Partnership trade agreement, with both actions generally meeting with approval from union organizations.

However, his first pick to lead the Department of Labor, Andrew Puzder, was strongly opposed by labor advocacy groups that felt Puzder wasn’t merely employer-friendly, but downright hostile to the concerns of workers. In early February, Puzder had his name withdrawn from the nomination process, and Trump has since nominated Alexander Acosta as Labor Secretary, who so far appears to be a far less controversial pick.

As to how the Trump administration could change the overall relationship dynamic between unions and employers, Livingston says that for many unions and employers that have had ongoing productive historical relationships, little is likely to change. “Over the years we’ve seen changes back and forth between Democratic and Republican administrations with little if any difference in the way those parties conduct business,” Livingston explained.

However, he also adds that with the somewhat mixed signals that have come out so far, there may be a change to the extent both unions and employers feel emboldened – and therefore take tougher bargaining positions – based on what they expect to see from the Trump administration.

“Unions may feel that they are in a stronger position regarding outsourcing, contracting out, plant relocations or other job losses as the president actively seeks to keep jobs from leaving the U.S. Employers, on the other hand, may feel that the NLRB will undo some of the union-friendly decisions regarding collective bargaining that were reached over the last eight years,” Livingston explained. “In cases like this where both sides are less likely to compromise, there is the prospect of tougher negotiations and an eventual work stoppage.”

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