Trump’s Second Term and the NLRB: What’s Next?: LRI INK

- Tweet0
- 0
- Pin It 0
- 0
- Subscribe to RSS
Subscribe

Subject: Trump’s Second Term and the NLRB: What’s Next?: LRI INK

November 7, 2024

To visit the blog post, click on the link below the article.

Trump’s Second Term and the NLRB: What’s Next for Workplace Rules?

by Michael VanDervort

With Donald Trump back in the White House, expect major shifts at the National Labor Relations Board (NLRB). The Board, responsible for setting the tone on workplace rules and organizing rights, is on track for a conservative overhaul.

While Trump may not take as much personal interest in labor policy as Joe Biden, his administration is likely to focus on rolling back Biden-era NLRB decisions, restoring employer-friendly rules, and redefining workplace standards. These changes could be significant and affect employers, employees, and labor organizers.

One of the first moves anticipated is a leadership shake-up. In 2021, Biden dismissed General Counsel (GC) Peter Robb on Day One, setting a new precedent. GC Jennifer Abruzzo, known for her pro-worker initiatives, will likely face a similar exit under Trump. Her replacement would align with Republican interests, prioritizing cases that challenge recent rulings and tilt the balance toward employers.

Trump can be expected to immediately name Marvin Kaplan as the new NLRB Chair, and nominate a new member to replace the Biden nominee Lauren McFerran, whose term will expire in December. Assuming he’s not confirmed during the lame duck session of Congress, Trump should also be expected to renominate Josh Ditelberg for the seat vacated by John Ring in 2022. He could go even further, though that is less likely.

Since the new Senate will have a Republican majority, Trump should have fewer issues getting nominees seated. If he does face obstacles (for example, if somehow Lauren McFerran is confirmed during the lame duck session) he still has options. NLRB Board members can only be removed for “neglect of duty or malfeasance,” but some conservative legal minds argue these protections may be unconstitutional. If Trump’s administration tests this theory, it could lead to early dismissals of Democratic appointees. While legally uncertain, this move would strongly signal a realignment with traditional Republican priorities.

A new GC would likely issue a memo revising the list of mandatory submissions to the Division of Advice, targeting policies for potential change. Here’s some of what could be on the Trump chopping block:

Stericycle & McLaren Macomb: These cases currently impose strict rules on confidentiality and non-disparagement, limiting employers’ control over employee speech. Expect a rollback to a more employer-friendly standard.
Lion Elastomers: This ruling protects workers engaged in offensive “protected” activity, barring disciplinary action. A conservative NLRB could tighten these protections, giving employers more leeway to discipline workers.

Micro Units: Allowing unions to organize small “micro-units” within companies has been a union-friendly strategy that a conservative NLRB would likely restrict.

A conservative NLRB under Trump signals a return to traditional, employer-friendly policies. Employers may gain greater flexibility, while employees and labor organizers could see a rollback of Biden-era protections. In labor law, the stakes are high, and with Trump’s second term, the rules of the game are set to change—again.

Blog Post

Approachability Minute: Motivating High Achievers on Your Team

by Michael VanDervort

In this week’s Approachability Minute, Phil Wilson examines one of the core motivators we’ve been discussing: the need for achievement. If you’ve got team members who are all about making progress, developing their skills, and getting recognized for their efforts, this episode is for you.

Phil shares how to engage these high achievers by focusing on their growth, discussing their current projects, and offering mentorship opportunities.

Tune in to learn how to tap into this drive and keep your team on track for success!

Watch the Video

Jurassic Park: Failed Pension Plans And The Unions Who Keep Trying To Reopen Them

by Kimberly Ricci

You have probably noticed that pensions are back in the news, and not because they are truly making a comeback. When it comes to sustainable pension plans—many have either needed bailouts or been shuttered during union contract negotiations—they barely exist outside of the government-employee context. This hasn’t stopped Big Labor from insisting upon making pension resurrections as part of contract negotiations.

Yet, as CNN recently pointed out, “no American union has ever succeeded in bringing [defunct pension plans] back” during contract renewals. Heck, even Shawn Fain folded on the restoration of pensions during last year’s United Auto Workers’ Big Three strike. In 2021, the Bakery, Confectionery, Tobacco Workers and Grain Millers (BCTGM) International Union went into strike mode with pension demands and ended with raises and 401(k) plan boosts.

Still, recent headlines reveal that freshly unionized ballet dancers are seeking new pensions despite the widespread cratering of existing plans that need government money to stay afloat. Also, the Teamsters still hold the dubious honor of the most “abused” and “mismanaged” pension fund in U.S. history, and they recently accepted the largest private pension bailout in history. Sean O’Brien’s “thank you” for that $36 billion was a non-endorsement stunt in the presidential election.

Pension bailouts continue unabated: In October, the feds pushed $635 million into the ailing Detroit Carpenters Pension Trust fund, and this taxpayer-funded bailout is one of several from the past few months. And back in June, the Biden Administration announced that it had, via the American Rescue Plan, already protected at least one million workers and retirees from lost or substantially deflated pensions linked to the Teamsters, United Food and Commercial Workers, United Auto Workers, United Steelworkers, Communications Workers of America, and more unions.

If pensions are such a disaster, why do unions want to bring these dinosaurs back into contemporary negotiations?

1. The optics: Sure, it sounds great for a union to fight for a plan in which an employer makes all or most contributions, unlike a 401(k), where an employee must contribute before an employer “matches” up to a point. Even though multi-employer pensions are prone to union mismanagement, Big Labor sees this demand as worth it, although mainly theatrical.

2. Nothing to lose: Unions are not risking a thing by inserting pension resurrection into negotiation demands. They realize that these defunct pensions will not be raised from the dead, but they use the issue as a bargaining chip to receive other demands like substantial wage boosts.

Looking ahead: This week, Boeing workers will vote on a third tentative contract approved by the International Association of Machinists and Aerospace Workers (IAM). The six-week strike was supposedly seeing the union hold out on a “longshot” demand for a pension return after Boeing offered to “increase its contributions to the 401(k) plans by around $10,800 a year.” A progressive publication has predictably called the third contract attempt “a sellout deal” because pension demands were dropped, and the proposed wage increase “is only 38 percent.”

The bottom line: No Jurassic Park resurrection miracle exists for extinct pensions, and the Boeing-IAM situation proved no exception. Boeing workers ratified a new agreement, ending a weeks-long strike, and delivering the aforementioned 38% wage increase over four years, but no restoration of pension benefits.

Blog Post

2024 Election: New NLRB Faces, New Labor Rules?

by Michael VanDervort

As of November 2024, the National Labor Relations Board (NLRB) comprises four members and one vacant seat, serving staggered five-year terms. The current composition is as follows:

Current Composition of the NLRB:

Lauren McFerran (Chair): Appointed in December 2014, reappointed in 2020, and designated Chair in January 2021. Her current term is set to expire on December 16, 2024.
Marvin E. Kaplan: Serving a term expiring on August 22, 2025.
David M. Prouty: Serving a term expiring on August 26, 2026.
Gwynne A. Wilcox: Serving a term expiring on August 27, 2028.
Vacant Seat: Previously held by John F. Ring, whose term expired in December 2022.

Recent Nominations:

To address the impending vacancy with Chair McFerran's term nearing its end, President Biden nominated her for a third term on May 23, 2024. Simultaneously, he nominated Joshua L. Ditelberg, a partner at Seyfarth Shaw LLP, to fill the vacant seat.

Senate Proceedings:

Both nominations were referred to the Senate Committee on Health, Education, Labor, and Pensions. As of August 1, 2024, McFerran's nomination was placed on the Senate Executive Calendar (Calendar No. 783), pending further action. The Senate has yet to confirm either nomination.

Implications for Labor Relations:

The composition of the NLRB significantly influences labor policy and the adjudication of labor disputes. A full Board ensures balanced decision-making and timely case resolutions. The pending nominations, if confirmed, would restore the NLRB to its full complement of five members, potentially impacting the direction of labor relations in the United States.

The pending nominations to the National Labor Relations Board (NLRB) carry significant potential implications for labor relations in the United States:

1. Extended Democratic Majority: If Chair Lauren McFerran is confirmed for a third term, the NLRB will maintain a Democratic majority until at least August 2026, when Member David Prouty's term expires. This extended majority could lead to the continuation and expansion of pro-labor policies and decisions.

2. Policy Continuity and Expansion: Under McFerran's leadership, the NLRB has issued rulings favoring union organizing and worker rights. Her reappointment could reinforce and further develop these policies, potentially affecting employer-employee dynamics.

3. Impact of Judicial Scrutiny: Recent Supreme Court decisions, such as Loper Bright Enterprises v. Raimondo, have altered the landscape of judicial deference to federal agencies. This shift may subject NLRB decisions to increased judicial scrutiny, potentially challenging the Board's authority and interpretations of labor law.

Impact of a Trump Election Win

If former President Donald Trump wins the upcoming election, the National Labor Relations Board (NLRB) will likely experience significant changes and a reversal in direction. A Trump administration could appoint new members as current terms expire, potentially shifting the Board to a Republican majority and reversing pro-labor policies implemented under the Biden administration. This shift may lead to a more challenging union organizing environment and alter the power balance between employers and employees, affecting workplace conditions and labor relations nationwide.

If former President Donald Trump is re-elected, he can remove the current NLRB General Counsel, Jennifer Abruzzo, at his discretion. The National Labor Relations Act does not provide tenure protections for the General Counsel, allowing the President to make such a decision. This precedent was established when President Biden removed former General Counsel Peter Robb upon taking office. Therefore, it is plausible that a re-elected President Trump could choose to remove Abruzzo early in his term.

Blog Post

Stories You May Have Missed:

Union Rights And Legal Protections After PepsiCo's Sudden Chicago Plant Closure

Link

Wells Fargo, Union to Begin Closely Watched Contract Talks

Link

Marathon, Teamsters to resume contract talks as Detroit refinery strike enters second month

Link

Marathon, Teamsters to resume contract talks as Detroit refinery strike enters second month

Link

1 big thing: End of an era

Link

About Labor Relations INK

Labor Relations INK is published weekly and is edited by LRI Consulting Services, Inc. Feel free to pass this newsletter on to anyone you think might enjoy it. New subscribers can sign up by visiting here.

If you use content from this newsletter, please attribute it to Labor Relations Institute and include our website: http://www.LRIonline.com

Contributing editors for this issue: Greg Kittinger, Michael VanDervort, and Kimberly Ricci.

You are receiving this email because you subscribed to receive our labor relations newsletters and updates. You can manage your email preferences by clicking the link at the bottom of any of our email communications.

About Labor Relations Institute

LRI exists to help our clients thrive and become extraordinary workplaces. We improve the lives of working people by strengthening relationships with their leaders and each other. For over 41 years, LRI has led the labor and employee relations industry, driven by our core values and our proven process, the LRI Way.

Share

Subscribe

Subject: Trump’s Second Term and the NLRB: What’s Next?: LRI INK