If, Then, What? The "Interesting" Present and Elusive Future of Federal Labor Law
When it comes to the future of the National Labor Relations Act—and labor unions generally—the only thing that seems certain is more uncertainty.
That said, while we can't hope to predict the future, by taking a closer look at the present, we can begin to map out the various possibilities it may have in store. Which of these possible futures comes to pass will depend heavily on the outcome of the national elections in 2020.
But first, the present. To say that these are interesting times for labor lawyers, unions and labor relations professionals is putting it mildly. As was the case the last time the White House changed political hands, the last two-plus years have featured dramatic changes to federal labor policy at the National Labor Relations Board.
Under President Trump, the Board has reversed course from the policies it pursued during the Obama administration, overturning one labor-friendly precedent after another and proposing significant rule changes on key issues such as joint employment status. Given the current direction of Board policy and the prevalence of state "right to work" laws, which prohibit private sector employers and unions from agreeing to contractual provisions requiring the payment of union dues, unions are economically stressed from reduced dues revenues and are facing a decidedly less friendly legal landscape.
And yet, despite years of declining unionization, unions seem more relevant than they have in decades and have retaken a prominent position in the national debate over economic policy and workplace politics. During the past two years, high-profile strikes have kept unions in the public eye. Among others, the current United Auto Workers strike at General Motors and teacher strikes in West Virginia, Kentucky, Arizona, Oklahoma and Colorado have been major news stories and largely positive ones from the perspective of organized labor.
In the political sphere, the current top contenders for the 2020 Democratic nomination—former Vice President Joe Biden and Senators Elizabeth Warren and Bernie Sanders—have all made reviving unions a major part of their campaign platforms. Warren and Sanders in particular have proposed a sweeping overhaul of federal labor law, including industry-sector collective bargaining, federal legislation to preempt state right-to-work laws and required union recognition without a secret ballot election where a majority of employees sign authorization cards. Even President Trump (despite the direction of the Board during his tenure) has voiced support for unionized workers and criticized employers during several high-profile labor/management clashes. While his relationship with union leadership has been rocky at best, the President's trade policies have garnered praise from union officials (and sometimes adversaries) such as AFL-CIO President Richard Trumka and former United Steelworkers President Leo Gerard.
Finally, there is evidence that public sentiment has shifted in favor of unions. Recent Gallup polling indicates public approval for unions is up to a high of 64%, after reaching a low of 48% in 2008. According to Gallup, this is the highest level of approval unions have enjoyed in nearly 50 years. Notably, over the past decade, the favorability of unions has increased similarly among respondents who identify as Democrats (currently 82% approval) and those who identify as Republican (currently at 45% approval). Additionally, overall approval among the youngest cohort of respondents (ages 18-35) stands at 68%. While it remains to be seen whether these numbers translate into a change in fortune for organized labor, the shift is striking.
Turning an eye to the future, the key question is which party will control the White House and/or Congress as of January 20, 2021. In any possible scenario, we can expect significant developments, but the scale of those changes varies widely, from another round of policy changes at the Board to a fundamental re-shaping of federal labor law that could allow unions to recapture at least some of the losses they've experienced since the 1950s, when nearly 35% of the U.S. labor force was unionized.
If President Trump (or another Republican) remains in the White House in 2021, the Board (so long as it maintains a quorum) will almost certainly continue in its current direction, overturning labor-friendly precedents through case decisions or rulemaking. As to labor legislation during a second Trump term, the prospect of anything significant is unlikely unless Republicans regain control both houses of Congress. Even in that circumstance, it is unclear whether President Trump has an appetite for making significant changes to federal labor law, such as the national right-to-work legislation proposed by some Republicans in Congress.
Conversely, if a Democrat takes the White House in 2021, it is safe to say that the policies of the Board will again shift significantly in favor of organized labor. Trump-era precedents on issues such as employer handbook rules, the size of bargaining units and the ability of employers to make changes during the term of a collective bargaining agreement would likely revert back to where they were at the end of the Obama presidency. Rule changes in process that were not finalized during the Trump administration would likely be abandoned, and rules that had changed over the previous four years would be revised yet again.
If a Democrat takes the White House and Democrats control Congress in 2021, then the kind of sweeping changes to federal labor law proposed by Senators Sanders and Warren would be a very real prospect. Notably, Warren is one of a number of Democratic senators who support changing Senate rules to eliminate the legislative filibuster. That rule change would mean a complete overhaul of the National Labor Relations Act could pass the Senate with a simple majority, not the sixty votes it would take under current rules. It's hard to overstate the potential impact of such legislation as a game-changer for labor unions. Union representation by card-check would make it far easier for unions to organize new groups of workers, and preempting right-to-work laws at the federal level would ease the financial stress unions have experienced due to shrinking dues revenues.
In the more immediate future, it seems likely that unions will continue the more aggressive approach they've taken in the past two years, with more work disruptions likely to result. If the Gallup polling is any indication, high profile strikes have not hurt unions in terms of public perception and indeed may be increasing their popularity. Additionally, unions are likely to continue to pursue legislative goals in states controlled by Democrats, such as increasing the minimum wage and making it harder for employers to classify certain types of workers as independent contractors who are not subject to certain labor protections.
One thing's for certain: as the 2020 election cycle progresses, we'll be hearing a lot more about federal labor law and the place of unions in the contemporary workplace. And depending on the outcome of that election, 2021 could bring the most significant changes to the National Labor Relations since the Taft Hartley Act of the 1940s and a very different landscape for a union movement long in decline.
If you have additional questions, please contact Manolis Boulukos or another member of our Labor, Employment and Immigration Team.
This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.