White Paper #2

Trump Administration’s Assault on Labor Unions1

Billed somehow (more on this next) as a populist and friend of the working man (note I’m not saying friend of the working man and woman), Donald Trump has conducted a relentless and destructive attack on the rights of working men and women during his presidency. The “somehow” aspect of this attack is a product of the fact that Donald Trump is fully capable of being dishonest – lying – with no shame, with a straight face, and in a way that does fool millions of well-meaning people. Trump can say that under his administration plants won’t close in Ohio. He can say his inaugural crowd was the biggest in history. He can and does tell literally thousands of lies – with no apparent shame, and to a degree, even when he is called on the lies, they work for him and the power people behind him.2 I submit that one of the most dangerous enemies of working people is a person in power who fools working people into believing he is their friend. Instead of standing beside working men and women as they seek to maintain and improve their lot, Trump has steadfastly put the knife in their backs.

This paper endeavors to show American workers, and those who support American workers, that Donald Trump is not their friend. Instead he is a dangerous enemy of working men and women in this country. This paper does not seek to chronicle or detail the full extent of Trump’s attack on workers’ rights. For this, I highly recommend the scholarly paper by Celine McNicholas, Margaret Poydock, and Lynn Rhinehart published October 16, 2019 (hereinafter “the MPR Paper”).3 This paper was published before the pandemic, where Trump’s assault became truly deadly to workers, on a massive scale.4

I am writing this white paper as a union-side labor lawyer to offer a glimpse of a bad truth to the public who cares about worker rights. A starting place is to acknowledge that labor unions seek to improve wages, hours and working conditions of working men and women in this country. And an attack on labor unions by the government is designed to and does diminish worker rights and the prospects of a good way of life for American workers. The MPR Paper (at page 2) details how studies have shown that as union membership declines in American, income inequality rises (page 2). And the MPR Paper includes a table (Table 1, page 4) graphically establishing that the National Labor Relations Board, under Donald Trump, has advanced “an anti-worker, anti-union, corporate agenda that has undermined workers’ ability to form unions and engage in collective bargaining.” (MPR Paper, p. 3).

I will discuss two examples of Trump’s anti-union agenda in action.

THE _JANUS _DECISION

The first example of Trump’s anti-union agenda, the _Janus _decision by the United States Supreme Court,5 has received wide publicity. It is important to know that the Trump administration was instrumental in this devastating attack on labor unions and accordingly on literally millions of working men and women. In the 2018 _Janus _decision, the United States Supreme Court ruled, by a 5 to 4 vote, that even where a state employer wants its labor agreement to require all employees represented by a union to pay a fair share of the union’s cost of representing employees, such agreements are illegal and unenforceable because of the First Amendment rights of those who receive union representation and want to do so without payment (or with payment by others).

The High Court ruled that neither an agency fee nor any other form of payment to a public sector union may be deducted from an employee’s wages, unless the employee affirmatively consents to pay. The Court made this ruling despite the fact that federal law requires any union that is the collective bargaining representative of a group of employees to fairly represent all employees in the bargaining union, whether or not they belong to the union and whether or not they pay union dues. The ruling is a devastating and unfair blow to labor unions. The ruling also undermines the interests of states that want labor organizations that represent their employees in collective bargaining to be sufficiently funded for the union to provide good representation.

The effect of the ruling is akin to a holding that movie theaters must provide free admission to anyone who wants to watch movies in the theater, whether they pay or not. After such a hypothetical ruling, the cost of the movie theater operation would be borne by the theater-goers who volunteer to pay admission, at least for as long as the movie theater stays open. A decision-maker with an understanding of basic economic theory would understand that if the government required movie theaters to admit freeloaders, movie theaters would be crippled or eradicated. In her dissent in Janus, Justice Kagan explained how the majorities ruling would decimate unions.

The gist of [the majorities’ argument] is that “designation as the exclusive representative confers many benefits,” which outweigh the costs of providing services to non-members. [Ante, at __, 201 L. Ed. 2d, at 943](https://advance.lexis.com/api/document?collection=cases&id=urn:contentItem:5SNC-KC61-JFDC-X3N8-00000-00&context=). But that response avoids the key question, which is whether unions without agency fees will be _able to (not whether they will want to) carry on as an effective exclusive representative.  And as to that question, the majority again fails to reckon with how economically rational actors behave—in public as well as private workplaces. Without a fair-share agreement, the class of union non-members spirals upward. Employees (including those who love the union) realize that  they can get the same benefits even if they let their memberships expire. And as more and more stop paying dues, those left must take up the financial slack (and anyway, begin to feel like suckers)—so they too quit the union.6

The Janus _decision overturned the prior rule from _Abood v. Detroit Board of Education, 431 U.S. 209, 97 S. Ct. 1782 (1977), which was based on protecting the state’s interest in labor peace and in avoiding the problem of employees reaping the benefits of union representation without paying for them. In Janus, a narrow majority on the Court decided that the concerns underlying the Abood decision have since been proven unfounded. The decision barred those unions nationwide from collecting mandatory agency fees from nonunion members to pay for union services like collective bargaining and grievance representation that are provided to all employees.

Here’s the story behind the Supreme Court’s decision to throw out 41 years of precedent and strike a huge blow against workers: In 1977 in Abood, the Supreme Court reached the decision the Trump-inspired_ Janus Court rejected. Dissenting Justice Kagan, writing for 4 members of the Supreme Court in _Janus, described the Abood decision this way:

For over 40 years, Abood v. Detroit Bd. of Ed., 431 U. S. 209, 97 S. Ct. 1782, 52 L. Ed. 2d 261 (1977), struck a stable balance between public employees’ First Amendment rights and government entities’ interests in running their workforces as they thought proper. Under that decision, a government entity could require public employees to pay a fair share of the cost that a union incurs when negotiating on their behalf over terms of employment.  But no part of that fair-share payment could go to any of the union’s political or ideological activities.

That holding fit comfortably with this Court’s general framework for evaluating claims that a condition of public employment violates the First Amendment. The Court’s decisions have long made plain that government entities have substantial latitude to regulate their employees’ speech—especially about terms of employment—in the interest of operating their workplaces effectively. _Abood _allowed governments to do just that. While protecting public employees’ expression about non-workplace matters, the decision enabled a government to advance important managerial interests—by ensuring the presence of an exclusive employee representative to bargain with.7

Justice Kagan described the harmful impact of the _Janus _decision on public employee and state and local governments:

Its decision will have large-scale consequences. Public employee unions will lose a secure source of financial support. State and local governments that thought fair-share provisions furthered their interests will need to find new ways of managing their workforces. Across the country, the relationships of public employees and employers will alter in both predictable and wholly unexpected ways.

Rarely if ever has the Court overruled a decision—let alone one of this import—with so little regard for the usual principles of stare decisis. There are no special justifications for reversing Abood. It has proved workable. No recent developments have eroded its underpinnings. And it is deeply entrenched, in both the law and the real world. More than 20 States have statutory schemes built on the decision. Those laws underpin thousands of ongoing contracts involving millions of employees. Reliance interests do not come any stronger than those surrounding   Abood. And likewise, judicial disruption does not get any greater than what the Court does today. I respectfully dissent.8

**Where did this anti-union Supreme Court decision come from?  **

This anti-union Supreme Court decision came in major part from the Trump administration. First, the 5-member majority decision was joined by Trump appointee Neil Gorsuch. It is likely that President Obama’s would-be Supreme Court Justice Merrick Garland, as opposed to President Trump’s appointed Justice Gorsuch would have preserved the Abood decision. The Supreme Court’s 1977 Abood decision, issued when President Jimmy Carter was in office, was rendered in a 9-0 decision, written by Justice Stewart (a Republican), with three of the Justices (Powell, Chief Justice Rehnquist, and Blackmun) concurring. The 2018 _Janus _decision’s five-person majority was transparently partisan, delivered by Justice Alito and joined by Chief Justice Roberts, and Justices Kennedy, Thomas and Gorsuch – all Republicans.

Second, the United States Solicitor General, a Trump pick,9 filed a friend-of-the Court brief urging the anti-union result reached by the majority. In 2013 and 2015, the Supreme Court considered overruling Abood. Both times, the United States Government declined to strike a blow against unions and the workers they represent. Both in 2013 and 2015, the United States Solicitor General argued to the Supreme Court that Abood _should be reaffirmed. But in December 2017, Trump-picked Solicitor General Noel Francisco argued in his brief to the Supreme Court before it decided _Janus and overruled Abood, “the government reconsidered the question and reached the opposite result.” U.S. Amicus Br. at 11.

TRUMP’S ATTACK ON UNIONS BY INCREASING

THE SCOPE OF THE DUTY OF FAIR REPRESENTATION

My second example of the way the Trump administration is attacking and seeking to undermine unions is not well known, compared to the _Janus _decision.

An aspect of federal labor law that the Supreme Court mentions in the _Janus _decision is the duty of a labor union, once it is certified as the collective bargaining agent for a group of employees with respect to a particular employer, to fairly represent everyone in the bargaining unit, regardless of whether the employee pays union dues (or fair share fees).

Most Americans probably assume that when a person wants to complain of wrongdoing, he or she “goes to the police” or “goes to court.” In the private sector working place (other than with railways and airlines10), a federal law, the National Labor Relations Act (the NLRA or “the Act”), provides rights to engage in concerted activities (like seeking recognition of a union, bargaining with the employer, or filing a grievance). In 1944 the United States Supreme Court recognized a “duty of fair representation” with respect to railway and airline employees represented by a union that was the worker’s certified collective bargain representative.11 On the same day the Court made this decision, the Court imposed a similar duty for other private sector (i.e. non-public) employees, under the Act.12 While the Act empowers a union to serve as the exclusive collective bargaining representative of workers, along with this authority comes a responsibility to exercise it fairly.13 Both the NLRB (“the Board”) and the courts have jurisdiction to hear cases concerning a union’s duty of fair representation.14

After the Board and the courts recognized the duty of fair representation, and prior to Donald Trump, the union’s duty of fair representation has always related to the dealings of the union with the employer with whom the union is the exclusive bargaining agent on behalf of workers. But now, things have changed ominously for unions (and thus for workers, who depend on unions to survive and help them with respect to wages, hours and working conditions). Here’s how:

As described in the MPR Paper,

The NLRB is a small, independent agency charged with safeguarding the rights of workers to organize and engage in collective bargaining. The agency’s board, by statute, has five members (with a minimum of three members required for a quorum) who serve five-year terms. The current board is composed of four members: three Trump appointees—Chairman John Ring (a former management lawyer), William Emanuel (another former management lawyer), and Marvin Kaplan (a former Republican Hill staffer)—and one holdover Democratic appointee, Lauren McFerran (a former Hill staffer and union-side labor lawyer).15

On July 29, 2020, the Senate confirmed McFerran’s renomination as a Board member for a term expiring December 16, 2024 and appointed Kaplan for a new term. So McFerran survives as the Board’s lone Democrat.

The MPR Paper says this about the General Counsel of the Board:

The agency’s general counsel, who is independent of the board and administers the agency’s field operations, is appointed to a four-year term. The Trump-appointed GC is Peter Robb, a former management lawyer. The NLRB GC is responsible for investigating charges that employers or unions have violated federal labor law (engaged in “unfair labor practices”) and for prosecuting violations; the board decides cases brought by the GC and also engages in rulemaking. Charges are filed by workers, unions, and employers—the NLRB GC has no independent investigative authority and so cannot bring charges on his or her own. But workers are also dependent on the NLRB GC to prosecute their case; they have no other option for obtaining redress when their NLRA rights have been violated (e.g., through arguing their own case before the board or in a private lawsuit). It is up to the NLRB GC to prosecute the case, and if the GC decides not to pursue a case, workers have no recourse. (This is not the case with violations of many other employment laws, such as wage and hour laws, which _can _be pursued by workers.) 16

The MPR Paper details the ways in which the Trump NLRB has advanced an anti-worker, anti-union, corporate agenda that has undermined workers’ ability to form unions and engage in collective bargaining. Through a series of decisions, rulemakings, and general counsel initiatives, the agency has systematically rolled back worker protections and betrayed its statutory obligation to administer and enforce the NLRA. The Trump board has faithfully acted on a top-10 corporate-interest wish list published by the Chamber of Commerce in early 2017—taking action on 10 out of 10 items on this list . . . . And the Trump board has gone beyond the chamber’s policy requests and advanced additional measures that undermine workers’ rights. 17

Not even on the Chamber of Commerce list, General Counsel Peter B. Robb is encouraging Regional Directors to increase scrutiny of unions and their practices. This extra scrutiny drives up costs to unions and thus undermines their efforts to organize and to represent workers. The MPR Paper notes:

At the same time the Trump GC is advocating that the NLRB change the law to make it more friendly to employers, he is increasing the NLRB’s scrutiny of unions and their practices. Robb has announced a new approach to evaluating whether a union has met its “duty of fair representation,” and his office is aggressively investigating [duty of fair representation] charges under his new approach. He has urged the NLRB to change the rules on how unions are required to handle “agency fee” payments by nonmembers and has persuaded the Trump board in one instance to find activities nonchargeable. And Robb has reversed the decisions of the agency’s regional directors to bring cases against unions when the regional director, after an investigation, had determined otherwise, far more often than the general counsel has reversed decisions regarding charges against employers.18

I have had personal experience with the way Donald Trump’s General Counsel (Robb) has had a negative impact on a labor organization. What Region Sixteen (in Fort Worth, Texas) did fits with the Robb agenda of ratcheting up prosecution of unions while easing rules for employers. This prosecution of a small local union, International Alliance of Theatrical Stage Employees Local 127 (“IATSE Local 127” or “Local 127”) in Dallas, Texas, did not offer any tangible benefit to union members or the public. Region Sixteen’s prosecution of Local 127 was a big cost and a big burden to a small and good labor union.

On April 17, 2018, a member of Local 127, Martin Audette, filed an unfair labor practice charge against Local 127. Audette filed an amended charge on May 10, 2018. Audette amended his charge again on October 5, 2018 and filed another charge on September 9, 2018. I was the lawyer for Local 127, seeking to first persuade the General Counsel that Mr. Audette’s claims lacked merit, and then defending Local 127 in court when the General Counsel prosecuted the “case.”

**Here’s what the Trump General Counsel did: **

First Region Sixteen tried to pressure Local 127 into admitting guilt – so it could post a notice that Local 127 had violated the Act with respect to Audette. The General Counsel, well aware of the fact that Local 127 is a small local union with limited resources, trying to provide good representation to the men and women it represents in the theater and stage industry in and around Dallas, Texas, refused Local 127’s arguments that it should dismiss Audette’s charges. Local 127 pointed out that on their face, Audette’s charges did not allege a plausible violation of the duty of fair representation – Audette was complaining of how Local 127 handled a complaint by one union member (Audette) against other union members. Audette was not complaining Local 127 failed to fairly represent him with any employer with whom Local 127 was the exclusive bargaining representative.

Local 127 also demonstrated to Region Sixteen that that Mr. Audette’s story was patently incredible. While in years past, with a different President and General Counsel, it is inconceivable that the Region would have pursued Mr. Audette’s baseless charges, Region Sixteen, no doubt due to pressure from above, gave Local 127 a terrible choice: It could plead guilty when it was innocent, or it could participate fully and effectively in an unfair labor practice hearing in a federal courtroom.

While a posted notice would have spared Local 127 the expense of defending itself and its reputation, such a posting could have ruined the reputation of Local 127 and would have done untold damage to the ability of the union to keep members and to build its membership. Local 127 had no good choices. The local union decided it must resist, trying to survive.

Second, after Local 127 declined to plead guilty to baseless claims, the General Counsel in Region Sixteen kept the complaint in place and took Local 127 to trial before an Administrative Law Judge (“ALJ”).

Mr. Audette’s claims against Local 127, which the General Counsel characterized as breaches of the duty of fair representation, were actually allegations that Local 127 failed to do something it should have done. After a trial and after hearing arguments of the parties, the ALJ who presided over the trial, Judge Keltner W. Locke, ruled Audette’s allegations of “breaches of the duty of fair representation might be called unfair labor practices of omission rather than commission.”19 Judge Locke issued a 29 page written opinion in favor of Local 127 on June 18, 2019, dismissing the complaint.

Mr. Audette complained in his charges to Region Sixteen of the Labor Board that he complained three times to Local 127 about acts of co-workers (not employees of Local 127). Audette said a co-worker subjected him to horseplay and that he complained about it to the business agent of Local 127. The General Counsel alleged that by not reporting back to Audette what he had done to stop the alleged horseplay (it was undisputed that Local 127’s business agent took action to successfully stop any horseplay directed toward Audette), Local 127 violated its duty of fair representation to Audette.

Mr. Audette also complained in his charges to Region Sixteen that while working on the stage at the Winspear Opera House in Dallas, a co-worker (apparently upset that Audette had gone to a hospital, taken a photograph of an unconscious fellow union member who had been injured in a motorcycle accident, and posted the photo online) had stated he “should whip his a-s-s.” Audette reported this (albeit with the wrong name of the co-worker who made the alleged threat) to the business agent of Local 127 as a “terroristic threat.” The General Counsel alleged that Local 127 violated its duty of fair representation to Audette by not informing him about remedial efforts Local 127 had taken in response to the complaint. Local 127 in fact had investigated and found no support for Audette’s claim. Further, Local 127 told Audette he should report concerns about acts of co-workers to his job steward.

Mr. Audette also complained that a co-worker bumped into him at work, causing his back to “snap.”20 The job steward for Local 127, upon hearing (not from Audette) that Audette had reported the matter to building security (not to Local 127) the next day, investigated and asked Audette if he wanted to file an injury complaint and/or a complaint against the co-worker. Audette said he did not. As to this, the General Counsel alleged Local 127 failed to notify Audette “of a procedure by which he could submit complaints regarding workplace conflicts with other employees.”21

Not only was Audette (a 15 year member of Local 127) aware of the procedure, but Local 127 had notified him specifically of the complaint procedure.

Mr. Audette complained in his charges to Region Sixteen that the president of Local 127 “told an employee that he would be responsible for the Union’s legal fees if [Audette] lost his NLRB case.”22 The General Counsel relied on non-credible testimony from Audette in the face of credible testimony of the president of Local 127 and another member of Local 127, as explained by Judge Locke. Judge Locke found that the president of Local 127 did not make the statement Audette claims he made.23

Judge Locke explained in his decision in detail. Judge Locke explained that the General Counsel’s theory in bringing the complaint against Local 127 did not make sense. Judge Locke stated, “The General Counsel’s argument assumes the existence of a free-floating duty to provide members with information, that is, the argument postulates a duty unrelated to the representation duty which the Act imposed on [Local 127] when it became the employees’ exclusive bargaining agent.”24 Judge Locke ruled the Act does not impose such a free-floating duty. In addition, as found by Judge Locke, Local 127 had acted well within any duty of fair representation that might apply.25

Although vindicated at trial, the General Counsel’s prosecution of Local 127 on behalf of Mr. Audette represents a dangerous attack on a union. The General Counsel in this case went far beyond the law relating to a union’s duty of fair representation. Although the General Counsel should have adhered to established law concerning a union’s duty of fair representation, and should have asked “where’s the beef” with respect to Audette’s incredible assertions, and saved the resources of the Government and Local 127, it forced Local 127 to fund a trial defense to preserve the union. Apart from furthering Donald Trump’s anti-union agenda, there were no real winners here.

I urge the readers to review the plentiful writings about Donald Trump’s anti-union agenda. And I urge the readers to give generously to the Stand Up For Workers Political Action Committee to elect representatives in Congress who will support worker rights in the face of Donald Trump’s attack on labor unions.

By Hal K. Gillespie, Gillespie Sanford LLP, Dallas, TX

Notes

  1. By Hal K. Gillespie, Gillespie Sanford LLP, Dallas, Texas U.S.A. 

  2. See www.washingtonpost.com/politics/President Trump has made more than 20,000 false or misleading claims. 

  3. www.epi.org/unprecedented. 

  4. See OSHA Faulted for Not Doing More To Protect Workers, by Lisa Smith, civileats.com/2020/06/16. 

  5. Janus v. Am. Fed’n of State, Cty. & Mun. Emps., – U.S. –, 138 S. Ct. 2448 (2018). 

  6. Id. at 2490-91. 

  7. Id. at 2487 

  8. Id. at 2487-88. 

  9. Wikopedia says Noel Fransisco is a Republican and that “[a]s Solicitor General, he was characterized as a staunch defender of President Trump. 

  10. Railway and airline employees are not covered by the NLRA, but rather by the Railway Labor Act (the RLA). Under the RLA, there is to “Labor Board.” Most complaints go to a form of arbitration in System Boards of Adjustment, while certain “major” disputes go to the federal courts. 

  11. Steele v. Louisville & N.R. Co., 323 U.S. 192 (1944). 

  12. Wallace Corp. v. NLRB, 323 U.S. 248 (1944). 

  13. See, e.g. Miranda Fuel Co., 140 NLRB 181 (1962), enf. Denied 326 F.2d 172 (2d Cir. 1963). 

  14. Vaca v. Sipes, 386 U.S. 171 (1967). 

  15. www.epi.org/unprecedented, p. 5. 

  16. _Id. _ 

  17. _Id., _p. 3. 

  18. Id., p. 16 (footnotes omitted). 

  19. International Alliance of Theatrical Stage Employees (IATSE), Local 127 (The Texas Ballet Theater) and Martin Audette, CASES 16-CB-219221 and 16-CB-226852, issued June 18, 2019. 

  20. In his decision, Judge Locke noted how Mr. Audette “could spin language to exaggerate the seriousness of other people’s actions.” _ Id_. at 6. See also id. at 7: “Even apart from the wild exaggeration, Audette’s text message raises questions about the reliability of his testimony.” Id. at 8: “Audette’s inclination to dramatize and exaggerate, his tenacious partisanship, his repeated errors in identifying who made the ‘kick your ass’ statement, and his seeming disregard for objective truth all lead me to conclude that his testimony is not reliable for any purpose.” See also id. at 26: “The fact that Audette did not file a workers’ compensation claim or seek treatment for the injury which he complained he had suffered suggests that he exaggerated his complaint of pain.” 

  21. Id., p. 25. 

  22. Id., p. 24. 

  23. _Id., _p. 25. 

  24. Id., p. 14. 

  25. Id.