The animosity between political parties has been pronounced over the past decade, and many of the policies established by Democratic President Obama have been hotly contested by the Republican-dominated Congress. This kept Human Resources professionals in a constant state of confusion, as laws related to employment, labor and benefits were passed and rescinded. Additional pushback from the courts added to the uncertainty, with the Supreme Court reversing some of the President’s decisions.
National Labor Relations Board v. Noel Canning
One of the most notable Supreme Court decisions came from the 2014 case National Labor Relations Board (NLRB) v. Noel Canning. This case started as a dispute between Noel Canning, a Washington State Pepsi bottling firm, and the Teamsters – the NLRB found that Noel Canning’s refusal to enter into a collective bargaining agreement was illegal. However, Noel Canning appealed this decision all the way to the Supreme Court, arguing that three of the NLRB members had been unlawfully appointed by President Obama. The Supreme Court sided with Noel Canning, holding that the President’s power to make recess appointments is strictly limited.
The issue of recess appointments appeared again in 2016 after the death of Supreme Court Justice Antonin Scalia in February. Continued acrimony between the President and Congress prevented the appointment of a replacement, and President Obama opted out of another attempt at a recess appointment.
As a result, the Court’s even number of votes tied on key labor issues, such as the ability of public sector unions to collect agency fees from workers who are included in the bargaining unit but do not wish to belong to the union. The 4 – 4 decision in Friedrichs v. California Teachers Association (2016) ensured such unions can continue collecting fees – a relief for unions, who were concerned that an additional conservative vote would prohibit compulsory agency fees.
A Conservative Supreme Court
The election of President Trump and a Republican Congressional majority suggest that a ninth Supreme Court Justice is likely to be on the bench soon, and President Trump’s selection is a conservative, as expected. Federal appeals court Judge Neil Gorsuch is currently under consideration, and if confirmed, could add the deciding vote to cases currently splitting the court 4 – 4.
A new member of the Supreme Court has broad implications for labor and employment law, ranging from the future of union organizing to the handling of health and retirement benefits. Businesses in favor of union avoidance believe they will find a friend in Judge Gorsuch when it comes to weakening organized labor.
Experts have hinted that certain issues are very likely to be brought before President Trump’s Supreme Court. For example, the issue of public sector agency fees may be brought up again, and some experts believe that the subject private sector agency fees will also be litigated in the near future. A decision to prohibit the compulsory agency in either the public or private sectors (or both) would weaken unions significantly.
Arbitration requirements are another topic of contention between employers and unions, with employers asserting their right to require individual workers to participate in arbitration of disputes. This dispute resolution process is instead of the union grievance process, not in addition to the existing union procedure. If employers’ right to enforce arbitration requirements is upheld by the Supreme Court, organized labor would suffer a serious setback.
The selection of Judge Gorsuch may not be President Trump’s only contribution to the Supreme Court. Over the next four to eight years, he may have the opportunity to make multiple appointments, which could dramatically change the future of employment law. Given the unpredictable nature of this administration, the best advice is simply to wait and see what happens. Here at UnionProof, we encourage you to use this time wisely, to develop a corporate philosophy on unions, if you don’t already have one, and to educate employees, train managers and build a strategy to become or remain union-free.