Unions Wait on Elections & $30 Million Pardon Scheme

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1:27wins with Adio. Start your free trial at adio.com slash iHeart. This is Bloomberg Law with June Grosso from Bloomberg Radio. During the elections, President Trump made his position on unions clear during a conversation with Elon Musk last August. I mean, I look at what you do. You walk in and you just say, you want to quit? They go on strike. I won't mention the name of the company, but they go on strike and you say, that's OK, you're all gone. You're all gone. So every one of you is gone and you are the greatest. You would be very good. And in the past six months, Trump has ended collective bargaining for two thirds of the federal workforce, effectively paralyzed the federal agency tasked with adjudicating unfair labor practices and disputes over union elections and rescinded the minimum wage that federal contractors have to pay to workers, just to name a few of Trump's anti-union actions.

2:27So it may not be so surprising that there's also been a significant drop in union elections and petitions to the National Labor Relations Board in the last six months. That stands in contrast to the previous three years, where there were a historic number of union elections, representation petitions, and unfair labor practice charges filed each year. My guest is Anne Lofaso, a professor at the University of Cincinnati Law School and an expert in labor law. And the average number of newly certified unions per month dropped 22.3 percent in the first six months of this second Trump administration compared to the last six months of the Biden administration.

3:15And there There's been a 15.8 percent drop in the number of representation petitions filed in that same time period. How do you account for this significant drop? I think you have to look at both sides of the equation. First, you had historic increase under Biden, a progressive general counsel. Abruzzo, the board was relatively progressive, not quite as progressive as Jennifer Abruzzo was. So Abruzzo was aggressively progressive. She looked at the law and she interpreted the law in a way that, in my view at least, was reasonable, but on the progressive side. The law can always be interpreted more progressively or more conservatively, more pro-union or more pro-business.

4:00And it's not like the law has a single meaning. And she was on the very progressive side, and that emboldened and encouraged unions to file election petitions and also to file unfair labor practice charges, even where it might have been a more iffy theory of why they were being unfairly treated. Iffy because in the past, they may not have gotten that theory validated for the board. So that's going to increase the numbers. Then when Trump came in, they're remembering the first Trump board. And the first Trump board, as progressive as Jennifer Brutus was, it was reactionary. It was extremely to the right, much more pro-business.

4:42And even in some instances, I would say not just pro-business, but anti-union, more so than any other board ever in the history of the National Labor Relations Board. And they're remembering this, and it was very painful for them. So they're in this sort of wait and see pattern, anticipating the worst. So I'm at a conference right now and I'm listening to people and they don't want to file petitions right now because they are really afraid. Now, the board doesn't have a quorum, so they really don't know exactly what's going to happen. I personally don't think that the Trump 2 board will be as reactionary as the Trump 1 board.

5:22I could be wrong. What makes you say that when Trump has appointed a conservative as general counsel? The reason I'm saying this, though, is because the general counsel, who is a conservative man, so he's going to interpret the law in a more conservative fashion. It's going to be more pro-business fashion. However, he's an institutionalist. He's been the regional director for one of the regions out in the West, I think in California, for a long time. He was a board member. He's loved by everyone. He was at the board when I was there. Everyone loved him. He was just kind. He was easy to work with.

5:58He doesn't want to destroy the agency. Also, people Trump put forward for the board, they're also institutionalists. He could have picked people that had union-busting careers, and he doesn't seem to be doing that. So it's possible that the fear that's going on is an overreaction, but I think at least they're waiting and seeing what this board will do. So when you put those two things together, though, the sort of record highs and then the remembering of what the Trump board did in his first administration, you get this huge swing. I don't know if it's going to last. It could be very interesting to see.

6:37And I think it's going to depend on what this board starts doing and whether it was willing to dismantle precedence. I mean, the board right now doesn't have a quorum, right? Correct. So what can they do? The board itself, meaning the five board members, can't do anything. The agency can do quite a bit. So the general counsel can issue complaints. The regions can investigate charges. The region can hold elections. They just can't be board certified. So there's plenty of things that can happen. So I don't think these numbers are necessarily because the board doesn't have quorum. Maybe some of them are to sign, well, if they can't be certified right now, then maybe we should wait.

7:15That could explain some of them. But there's a lot they can do, certainly on the unfair labor practice side, right? Because it takes a while for you to have an ALJ hearing. There's going to be a board within the year, and you might want to get at least the hearing done. I mean, I heard yesterday one of the union organizers was telling me that he has something that's been six years before the board. So there are some big backlogs. That's an unusual case. But I've heard about longer than that also. And by the way, this is not just from the Biden and Trump era. When I was there under Bush and Clinton, there were like long delays also.

7:51And we don't know whether I think every board does this to some extent. If it's a really difficult issue, sometimes they just think about it and then they run out of time because they no longer have a quorum or something. And that's become more and more usual since the early 2000s when Congress has decided not always to fill those spots. So with a more dysfunctional Congress, you have these times where the government's not functioning. The administrative agencies are not functioning because they don't have officials who have been appointed by the president and confirmed by Congress. So you get these backlogs also.

8:30Is this reluctance coming from the union leaders or the workers who might fear the political climate, especially in light of the economy and the labor market? I mean, where is it coming from? Oh, both, definitely. So from the workers' point of view, they're scared. There are people that are afraid to even speak out against the president for fear of retaliation, because we saw that the president decided to fire a large percentage of the federal workforce, which he has direct control over. So people are afraid to speak out. Now, whether that's justified or not, the historians will tell us that. But people certainly are afraid.

9:11And so they don't want to stick their necks out right now. But union leaders who are thinking about these things and hearing from their constituents are also concerned. And they're more in the wait and see pattern, like, well, let's see what's going on. But the workers themselves, I think, are afraid. And they're also afraid because the economy isn't as good. So when you have a much better economy, which despite what everyone is saying, we had a pretty good economy under Biden. But the economy has been going down and down. And the market, the labor market is much tougher right now. There's no slacks in the labor market.

9:49So it's hard if you get fired from a job right now, let's say you're unjustly fired because you're a union activist, you may not get another job. It's very tough. So this makes people afraid to organize. And it makes the labor organizer's job and the labor union leader's job that much more difficult. You say wait and see, but don't the unions already know where Trump stands, especially with the executive order that he issued ending collective bargaining for two-thirds of the federal workforce? Even before Trump took office, student athletes dropped organizing efforts at Dartmouth College and the University of Southern California.

10:32Well, that was smart of them because the general counsel has withdrawn Abuso's memo, her general counsel memo, stating that student athletes are actually employees and should have the protections of the board. So we do know almost certainly what this board would do with that. So on that issue, it's pretty clear. But there are sometimes some very easy issues. For example, remember the early 2000s when Bush was the president? Schaumburg and Wilma Liebman, two people that couldn't be further apart, a progressive Liebman and a conservative Schaumburg, a very conservative Schaumburg, they agreed on 600 cases together.

11:13Now, they were all found voids by the Supreme Court because there was only two and they weren't a quorum, but not because of what they decided. Those were all easy cases. There's plenty of easy cases to go forward. What they're waiting and seeing on, and I think what they are going to not do, is we're not going to see them pushing the envelope on anything. Like, I would be surprised if unions say, okay, we're going to ask for expanded remedies right now. I wouldn't ask for them because I wouldn't want that precedent to go before a court. First of all, I wouldn't want it to go before the board.

11:46And then I wouldn't want it to go before the court because of what could happen. So they're not going to push the student-athlete issue right now. So if I were student-athletes right now, I might go for a voluntary recognition, but I wouldn't go for anything else. So I understand those issues, but we don't really know. Yes, I agree with you that the executive order, and many of the executive orders, but I'm thinking of one in particular, the president is trying to control the administrative agencies a lot more, and the president has taken the position that he can fire board members, and only the Supreme Court can tell us if that's true.

12:20My guess is even though right now the precedent at the Supreme Court is that he can't fire commissioners or board members, that they are likely to reverse that. It will be a split, a divided vote. And I'm talking about Humphreys' executor. So if he can fire anyone at will, if he doesn't like a decision that comes out of the board, then he'll just fire the person. So I'm sure that these board members are going to be somewhat more beholden to the president than they normally were in an independent agency where they really were independent of the president. I think that will happen. And let's face it, he already fired Wilcox, member Wilcox.

12:59And I do want to remind the audience that she was the first black female board member. And so the look is very, very bad that he decides to fire the first black board member, but not the Democrat white male. And again, that could be a coincidence. I don't know, but it is a very bad look. And so it does send a message, definitely. But again, the president is not going to fire a board member because of an obvious, simple case of enforcing the law. I think what he would do is if it's something that gets the chamber upset, that gets Starbucks or Amazon upset. And that doesn't mean Starbucks losing a case or an election.

13:41I mean, where Starbucks thinks this is ridiculous because these are expanded remedies or something like that. So, yes, I think it's just a more nuance than people always have soundbites and they always sort of feel when they're in the moment one way or the other. And I at least am taking also a wait and see. And I'm optimistic that it will not be as bad for unions as it was under the Trump one administration. Let me put this way. I wouldn't bet on what I'm saying. I just think it's more likely than not. Like 49 to 51 percent. That's where I'm at. Coming up next on the Bloomberg Law Show, I'll continue this conversation with Professor Anne Lofaso.

14:22How unions are already playing defense. I'm June Grosso and you're listening to Bloomberg.

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16:50This year's organizing slump is a stark contrast to the previous three years where the NLRB saw historic numbers of representation petitions, union elections, and unfair labor practice charges filed each year. I've been talking to Professor Anne Lofaso of the University of Cincinnati Law School. Would you say that labor unions are playing a defensive role already? They're sort of on the front lines of some of the legal fights against Trump's reduction in force plans and moves to exclude two-thirds of the workforce from collective bargaining rights and initiatives that shutter agencies and affect universities?

17:36Absolutely. Unions are definitely on the defensive, and they're concerned. There's a lot of things unions can do. But remember, whatever they do for their members, they also can't live without members. They need fees because organizing takes money, and getting benefits for their members takes money. So they are on the defensive and they want to survive. And this is in their mind. Again, I can't get into the mind of every union, but I wouldn't be surprised if for them this is an existential threat. That's how higher education feels right now. I mean, I'm a member of a union at my university, and we certainly feel that this is an existential threat.

18:18People are palpably afraid. And by the way, we're a public institution. So what's going on in public institutions is at the state level, more at the state level, but it's the same kind of thing that's going on, at least in the red state. And I'm in Ohio, which is, even though Cincinnati is a blue area, the University of Cincinnati is a state institution. So we have a state legislature. So we are part of the same thing that's going on in West Virginia and other red states that are part of this idea that unions are not good for the economy and that higher education is left -wing propaganda. And I think a lot of us are afraid to speak out.

19:02We're afraid to, what are we going to do? We want to keep our jobs, even tenures on the line. So it's going on all over the country. Is there a sort of culture shock? Because you went from a president who was walking picket lines with striking workers to Trump who's signing executive orders to limit union rights. Probably for a lot of people. It didn't surprise me because the whiplash has been going on for so along, I've studied it. So it was exactly what I expected. But I do think that for many people, especially younger people, right, because they don't have that historical, I think when you're young, you forget there was an existence before you were born, right?

19:49You just are born and then this is what you grew up with, right? I mean, I have a 21-year-old daughter. And so what has she gone through? What has she seen, right? And her memories are of Biden, mostly, a little bit of Trump, right? And so there is a whiplash for a lot of people and also people who don't pay attention as much, but now they're in a union. I'm sure there's also a cultural whiplash. For those of us who study labor law, we knew this was going to happen. None of us were surprised at all of any of this. By laying back now, is there a risk to the momentum that the unions seem to have picked up in the last few years?

20:27There's a concern about that. So the concern is, okay, if we stop organizing, we lose our momentum. But if we organize, we might get bad results. This is why you're in this paralysis, this wait and see, because there's this one push to kind of keep the momentum up. People want unions more than ever in like, at least the last 75 years, could be longer even, you know, so they're more popular today than they've been certainly in my lifetime. But at the same time, you have an administration that's more hostile to unions, definitely since before FDR. So before the New Deal, you know, when you have the horrors of what was going on in the Industrial Revolution, and the hostility to unions back then.

21:13So there is a paralysis right now. And, you know, which way do we go? You're at a path that's splitting right now. Now, do you go in this relatively aggressive way and continue the momentum? Or do you stop? Or do you do something less aggressive that you can keep up the momentum? What is the right choice? And I think people don't know what the right choice is right now. And that's the problem. What role will the Supreme Court play? You talked about Wilcox. In that case, we'll probably go up to the Supreme Court. But what about other decisions? Is there anything likely to come before the Supreme Court, which has ruled against unions time and time again recently?

21:56Yeah, I think the strategy will be for unions to keep those cases out of the Supreme Court. If they lose, they won't petition for certiorari. If they win, that's out of their hands. The employer will petition. But the problem is that the board going to be more pro-employer is going to flip position. And so they might be able to keep a lot of things out of the Supreme Court. They won't be able to keep the administrative stuff, the constitutional stuff out, because the Supreme Court can be really interested in things like the Wilcox decision. But the actual labor law decisions, what I think is more likely is if they can get a decision up there about whether or not the board was entitled to deference.

22:39And so, and a lot of people think that's a dead end because Loper Bright overruled Chevron, but there's still deference. And there's certain types of deference. And right now the courts are split on how to, what that deference looks like. Is it completely de novo? So there's absolutely no deference. We know there's not complete deference like there was under Chevron, which was not complete, but it was very, very deferential. But there's also something called Skidmore deference, where you take into consideration the history and the purpose of the act and what the board has done in the past. So it's interesting that some courts aren't doing that at all, like the Fifth Circuit and to some extent the Sixth Circuit.

23:22And other courts are really struggling with that, like the Third Circuit, that's really thinking about that in a very nuanced way. I applaud the Third Circuit for its doing. So I think that is more likely to come up. And what the labor issue is will be more accidental and maybe even surprising. You talked about whiplash. This is a big, big picture. Are unions forever dependent on which administration is in power? Maybe. On the other hand, maybe not. Because one of the things that the Supreme Court wants to accomplish by overturning Chevron through its love for Bright decision was to stop this whiplash and saying we are the final arbiters of what the law is.

24:05And therefore, I think in the long run, there's going to be more labor issues going up to the Supreme Court again, because the court is going to decide when there's a big whiplash like this, they're going to say, we can't have this. We can't just keep going back and forth. So you can see a lot of the old decisions that were done before Chevron, no one's going to touch those. I would be really surprised, like Republic Aviation and Leachmere. Republic Aviation is very pro-union. Leachmere is not pro-union. It's for pro-business. But there are similar issues. Those cases, they were done before Chevron.

24:41And there was a lot more stability. But as you gave the board deference, and as long as they just explained their change, the courts were sort of hamstrung, unless there were individual judges that just were not going to give them deference, which there were. There were individual judges not paying much attention to Chevron for various reasons. So I think that the Supreme Court may just decide these things. Now, with a very conservative court, they may decide them in a way that unions don't like. So that would be the downside until the court becomes once again more progressive, which will happen.

25:16I mean, there's always going to be change. But of course, the Supreme Court changes much more slowly. So there won't be a whiplash. With agencies, they're much more accountable to whatever the democratic process was. So whoever's in power, it can change every four years. It rarely goes more than eight years without a change. Occasionally, I mean, the one I can think of was Reagan. Reagan to Bush, there was 12 years of Republican rule. And then you had eight years of Clinton, eight years of Bush, and then eight years, and then four, four, and it will be four again. And then we'll see if it goes to a Republican or a Democrat.

25:51And then it's the president who decides the Supreme Court, but you have to have the openings. The president, especially if they can fire board members, they can literally change extremely quickly, extremely quickly. And that's your whiplash. So I think the hope is among business people, especially because businesses can survive, but they don't like environments where the laws are not predictable. I think that we might see a little bit more stability, maybe not in the short run, but in the long run, we might see more stability. Again, I'm taking a look and see. I'm waiting because while that would be my logical, rational take on this, humans are not always rational.

26:36So who knows what's going to happen? So we'll see. I just want to say that I'm at this wonderful conference right now for musicians and just wanted to remind people that musicians are workers and they work under very difficult conditions. Hence, they are totally trying to organize and that people should support musicians. Thanks so much, Anne. That's Professor Anne LaFasso of the University of Cincinnati Law School. Coming up next, a$30 million pardon scheme. This is Bloomberg.