Washington, D.C. - Labor officials in Washington D.C. are preparing for the worst and hoping for the best as Donald Trump assumes the office of president of the United States after losing the popular vote by 2.9 million votes but winning enough electoral votes from the states to assume the presidency. Trump secured his Electoral College win by squeaking ahead just slightly of corporate Democrat Hillary Clinton in states like Pennsylvania, Wisconsin and Michigan.
The election of Donald Trump has increased anxiety for a labor movement that has already been under sustained attack since 2011 when Tea Party governors began to roll out attacks on collective bargaining rights in states like Wisconsin and Michigan. The attack most recently culminated in Harris v. Quinn when a narrow right-wing majority on the Supreme Court ruled in 2014 that unions could no longer collect fair share fees to cover the cost of representation from certain groups of public employees who opted not to pay their membership fees to the union.
Labor officials fear an intensified assault on workers’ rights in three primary areas. Rank-and-file workers are right to be anxious too about the dangerous possibilities a Trump administration presents. Effectively resisting an anti-labor agenda will require both a sober analysis of the situation and rank-and-file militancy in fighting back in the workplace and in the streets.
Trump Supreme Court pick will likely renew Friedrichs attack
Workers dodged a bullet when Supreme Court Justice Antonin Scalia died in February 2016, depriving the Court of its extreme anti-union majority. Prior to Scalia’s death it looked as if the Supreme Court would undo fair share fees for all public-sector employees in the case of Friedrichs v. California Teachers Association, negatively impacting thousands of labor contracts covering millions of public workers in the process. The death of Scalia gave labor a temporary reprieve as a lower court ruling in favor of fair share fees has been upheld until the Court’s vacancy is filled.
The success of Senate Republicans in blocking Merrick Garland, President Obama’s nominee to the Supreme Court, means that a President Trump will get to nominate Scalia’s replacement; a Republican Senate will be responsible for confirming the nominee.
In September 2016, Trump completed a list of 21 potential nominees to the Supreme Court. According to a USA Today analysis, Trump promised upon releasing his list to appoint justices like Justice Scalia. Ten of the potential nominees are federal judges put on the bench by President George W. Bush; one is a federal judge nominated by the first President Bush. Nine others were placed on state supreme courts by a Republican governor, and four of them clerked for Clarence Thomas, who is often viewed as the Supreme Court’s most conservative justice.
A Trump presidency very likely means a right-wing majority on the Court will take back up the Friedrichs case, or one similar to it, and rule against public sector workers by undermining fair share arrangements and thus starving their union of resources. The Service Employees International Union (SEIU); American Federation of State, County, and Municipal Employees; National Education Association; and American Federation of Teachers are just a handful of the public-sector unions that will be greatly impacted by a negative ruling on Friedrichs. Many of the labor officials associated with these unions believe it is not a matter of if, but when, the Supreme Court undoes public sector fair share.
A potential Trump NLRB threatens to undo union rights for graduate students and others
The National Labor Relations Board (NLRB) ruled in August 2016 that graduate research and teaching assistants have the right under the National Labor Relations Act to form a union and collectively bargain with their private university employer. The decision reversed a 2004 NLRB ruling, which had found that graduate assistants at private universities were not employees and had no right to collectively bargain under federal law.
In the months since the August decision, graduate assistant employees at Columbia University have voted to join the United Auto Workers (UAW). Graduate workers at other universities have since filed for their union election as well. Private university graduate workers and union organizers fear that a Trump-appointed NLRB will reverse the 2016 decision and undo recognition of their right to collectively bargain.
In December 2014, the NLRB issued several rules that updated procedures for resolving representation disputes. The rules helped speed up the timeline for elections, which generally benefits workers and the union by limiting the amount of time the boss has to use union-busting tactics to scare and divide workers, allow for the electronic filing of union petitions, and require that employers provide additional available contact information such as personal telephone numbers and email addresses to the union when it provides voter lists.
These rules are minor reforms in the larger landscape of U.S. labor law, but they have helped streamline election procedures on a more level playing field for workers and unions.
According to CNN, Trump will soon appoint three of the NLRB’s five members. He will have the opportunity to fill two of the vacancies immediately upon assuming the presidency. The third spot will open in December 2017. With the terms of the two Democratic members of the Board expiring in 2018 and 2019, Trump may actually end up filling all five spots on the Board. This would dramatically remake a Board that in recent years had taken some concrete steps to make it easier for more workers to join a union and negotiate a first contract. A Trumpian NLRB threatens to undo progressive Obama-era NLRB rulings on graduate worker organizing and union election procedures.
Anti-union legislation looming as Republicans assume power at every level of government
Democratic nominee Hillary Clinton won the popular vote decisively, but the former Secretary of State and corporate Democrat who once served as a member of the board of directors at low-wage employer Wal-Mart led her party to a landslide loss in terms of branches and levels of government. Republicans are now in control the White House, and the U.S. House of Representatives, and the U.S. Senate giving them a lock on the national elected government.
According to the National Conference of State Legislatures, the Republican Party was also elected to control of both legislative chambers in 32 states, a record high. Republicans control 33 of the country’s governorships, and Republicans control both legislatures and the governorship in 24 states, giving them complete control in those states.
Total Republican control of the executive and legislative branches of government at the national level and in 24 states has created concern about both national and state ‘right to work’ legislation. ‘Right to work’ is a misnamed law that prohibits private sector unions from negotiating contracts that require all workers covered by a union to pay dues for the cost of negotiating contracts and representing workers. It essentially creates a class of freeloaders who get all the benefits of a union with none of the responsibility that full members share in terms of financial support.
An analysis by the AFL-CIO, the country’s main and largest labor federation, found that ‘right to work’ laws hurt workers in several different ways. States with ‘right to work’ laws have lower wages and incomes, lower rates of health insurance coverage, higher workplace fatality rates, and higher poverty and infant mortality rates. ‘Right to work’ laws do not guarantee anyone in the states that adopt them the right to any sort of job, despite what the name implies.
Labor’s concern about state ‘right to work’ legislation is not unfounded. Kentucky became the 27th state to implement ‘right to work’ legislation on January 7, 2017. Missouri and New Hampshire are considered top targets for additional ‘right to work’ laws that would further undermine worker rights and starve labor unions of much needed resources.
The worst-case scenario is one where the U.S. Congress passes national ‘right to work’ legislation that Trump then signs into law. The likelihood of national legislation is more difficult to predict. Most Republicans, and the section of the U.S. corporate interests who back them, would certainly like to see national ‘right to work’ legislation.
However, Republicans already have their plate full attempting to repeal the Affordable Care Act (commonly referred to as Obamacare) and pass massive corporate tax cuts. It is an open question how long it will take them to implement those parts of their agenda, assuming they are even successful, and if they’ll have the political capital to pass national ‘right to work’ legislation after doing so.
Regardless of what attacks come their way, rank-and-file militancy is required to push many union leaders out of the dead-end strategy of campaign contributions to Democrats and lobbying behind closed doors in between elections. Direct action - especially direct strike actions and mass protest in the streets - is the strongest tool workers have in their arsenal to fight back against the attacks on worker rights.
David Hoskins is a senior research analyst on staff for a major labor union headquartered in Washington, DC. The thoughts and positions in this article are his alone and do not necessarily reflect those of the labor union by which he is employed.