This is Bloomberg Law with June Brusso from Bloomberg Radio. During Joe Biden's presidency, workers have racked up victories with historic union contracts with the Big three automakers Hollywood Studios, UPS and Boeing, and unions freshly established at Apple, Amazon, Microsoft, Chipotle, and Starbucks. Biden's appointees have issued rules such as eliminating non compete agreements and making more workers eligible for overtime.
Whatever the details, a second Trump presidency is expected to negatively impact American labor and favor corporate America, flying back much of the leverage that workers have gained in the last four years. Witness an August twelfth interview on X where Trump praised Elon Musk for threatening to fire striking workers. I mean, I look at what you do.
You want to quit?
They go on strike.
I won't mention the name of the company, but they go on strike and use it.
That's okay.
You're all gone.
You're all gone.
So every one of you is gone, and you are the greatest.
Joining me is an expert in labor law, Kate Andreas, a professor at Columbia Law School. Kate, before we talk about the consequences for American workers of the next Trump administration. Let's talk about this case where the National Labor Relations Board overturned a nearly forty year old president. It involves Starbucks managers making threats to employees during a union election drive.
Well, Starbucks managers in this case and an others have made a whole host of threats, but the one that was particularly an issue in this case was a threat by employers that if workers decided to organize, that would
change their relationship with management in a negative way. So the just blow how that that statement was permissible because there was an old board decision dating from the nineteen eighty five, which held that as a categorical matter, when employers stay to workers that union organizing it's going to change the dynamic with the company, that that does not
count as a threat. And so the judge below was applying that precedent that dated from the nineteen eighty What the board said here was that that precedent should be overruled because it's inconsistent with the statute's prohibition on employers coercing employees and the exercise of their union rights, and it's also intention with other doctrine and including Supreme Court cases, would say that employers can't threaten workers who speak to organize unions.
So it was a forty year old precedent and they threw it out.
They overruled it. But it was a forty year old president that was in considerable tension with other cases, including the Supreme Court decision in an even older precedent called Nlar reversus get Fell that dates from the nineteen sixties. So the board overruled that old case, but said that it wasn't going to apply the new rules of Starbucks in this case, and that it would only apply the
new decision prospectively. That said, Starbucks in the same case made a lot of other threats which did violate established law, and both the Alegity Administrative Law judge and the Board found Starbucks liable of unfairlya for practices based on the other threats.
With this decision, what kind of threats can employers make?
So employers are not supposed to be making any threats when workers try to organize unions that is prohibited by the law. What employers can do and what the Supreme Court said employers can do in the nineteen sixty nine decision is employers can make predictions about what might happen in the future regarding things that are outside of the
employer's control. But when the employers start threatening changes dates that are within the employer's control, like we're going to change our relationship with you, that becomes a threat and it's not permitted because workers have the right to organize unions free from coercion by employers.
If this is in line with prior precedent, why did it take forty years for it to be overturned.
Well, well, I think this board has made a concerted effort to look at the doctrine and try to make sure it is really all in line with the statute and with the protection of workers to organize unions. And so there are a number of long standing precedents which are intention with those fundamental statute or commitments that the Board has been taking a look at and reconsidering in the last four years.
So Starbucks said this ruling unfairly applies a new legal standard on Starbucks retroactively, which the NLRB should not do. We're considering our next steps. But you said they weren't going to make the ruling retroactive, right, Yeah.
My understanding of the opinion and my reading of it is that the Board very clearly said that it was only going to apply this rule prospectively for the concern that Cerbuck places that the Board wants to make sure that the law is clear to those who are covered by it, and so this new interpretation of the law that brings the law into alignment with the Supreme Court's holdings is only going to apply going forward.
Now, this is the first presidential ruling since the country voted to send Donald Trump back to the White House, and it was three to one, the three Democrats to the one Republican. What likely will happen to the Board when Trump takes office.
I think that we will see the Board over time become much more hostile to workers and to workers' rights to organize unions. How quickly that happens, though, is an open question. The Board is an independent agency, which means that the President does not, under the law, have the right to fire the Board members. Rather, they serve for terms, and so the Board's composition will turn over with time.
It all goes according to the stat that said, a number of business groups have taken the position that those protections that the board members have in order to create independence are unconstitutional. So it's possible, depending on what happens with the litigation challenging the constitutionality of the Board, and also depending on what Trump does, that the composition of
the Board could change more quickly. In any event, once Trump has appointed a majority of the Board, I think we're likely to see the board rolled back many protections for workers right that the Biden Board has affirmed and enforced over the last four years.
Tell us about the role of the General Council Jennifer of Rutso, I mean, he can change her position right away, right.
Right, So. The General Council is the person within the board who prosecutes cases and who brings cases, and Jennifer Brusso has been very energetic and effective at prosecuting violations of the law and making sure that the NOTHERA is interpreted in ways that really protect workers rights to organize em bargain. I think we can expect that President Trump
will replace her. He doesn't have to, but I think it's likely that he will replace her with someone who's much more pro business and anti worker.
During Joe Biden's presidency, can you describe the strides the accomplishments that unions have made.
Yeah, I mean in lots of ways. I think President Biden was one of the most pro union presidents that we've had in a very long time, everything ranging from the President's decision to join ticket lines to his efforts to get employers to settle strikes. That's the president's actions himself, but also the National Labor Relations Board and the Department of Labor both acted in ways, promulgated rules and issues decisions to protect workers rights. So just give you a
couple of examples of achievements by the board. The National Labor Board has made union elections faster. They have also changed the standard for who counts as an employer in order to try to hold employers to exercise power over supply chain or reliable as well as the bordinate subcontracted employers. They reversed a number of Trump era rulings that limited the ability of workers to organize that limited access to
the workplace. They made it harder for employers to issue rules that appear neutral but have the effect of killing workers organizing drives. They sought injunctions to try to reinstate workers who are illegually inspired, and they also began to seek bargaining orders to lein employers and repeatedly violate the law. They issued a stenter that made it easier for the
Board to order employers to bargain with unions in those circumstances. So, in lots of different ways, they made it easier for workers to organize unions and made it harder for employers to violate employee rights. In the context of the Department of Labor as well, they tried to change the standards
so it's harder to misclassify employees as independent contractors. There are various rules that they tried to promulgate to protect workers from health and safety violations, for example, from extreme heat, and they've gone after child labor violations aggressively. So both the National Labor Relations Board and the Department of Labor have really worked very hard over the last four years to make sure that the law protects workers right and they have worked hard to enforce the law as well.
So that sounds like a lot of accomplishments. I mean, how fast can they be unwound or taken away? You know, in a Trump administration, I think.
Something can be done right away. So enforcement policy, we're likely to see changed very quickly. So currently, as I said, the Biden Department of Labor has been aggressively enforcing against child labor violations. They've also been trying to go after what's sometimes known as apex corporation, so big corporations that affect a lot of the labor markets. We're likely to see the enforcement policy means right away, and for the
Trump administration to adopt a more conciliatory enforcement approach. It takes longer to change rules. Those have to be changed either through adjudications individual cases or through notice and comment rulemaking where the agency tells the public what it plans to do or what it's considering, allows effective parties to comment, considers those comments, and then issues a new rule. So
that's enforcement is quick, rule change is slower. The wildcard question, I think, is what happens with all the constitutional challenges to the agencies. So if those move quickly, we could see really radical changes with the nationallyb relation sport and the Department of Labor's ability to function.
Coming up next, I'll continue this conversation with Columbia Law School professor Kate Andreas. We'll talk about workers' advocates shifting their focus to states and cities. This is bloomberg. Unions have been invigorated during the Biden administration with historic union in contracts and successful organizing efforts. A second Trump presidency is expected to negatively impact American labor and favor corporate America, flying back much of the leverage that workers have gained
in the last four years. I've been talking to Columbia Law School professor Kate Andreas, an expert in labor law. You know, when he ran, Trump courted union workers and he promised that he would do better for them than Biden did. Last time Trump ran the government, however, it was a different story.
I think what we know from Trump's track records is that when he was in charge of the government, we had labor agencies that were very pro business and very hostile to workers. So I think that's likely what we will see again. We can be hopeful that maybe that's not the case, but I think that the past practice suggests that we're likely to see a lot of anti worker activity from this administration.
Daniel Vicenti, a regional director for the UAW, said everything becomes harder, from organizing to negotiating strong contracts to strikes I mean, why would things like strikes become more difficult.
Yeah, I think he's right that both bargaining and strikes can become more difficult. So first of all, say something about bargaining and then turn to strikes. The law obligates employers to bargain in good faith, but when employers refuse
to do so, question is what happens. And this agency has tried to obligate employers to bargain good faith, and the President has also intervened in various contract issutes to encourage employers to bargain and to reach settlements that benefit workers and so that workers can get their fair share of increases in profits. With respective strikes as well, the law protects the right to strike. It prevents workers from being permanently replaced if they go on what's called an
unfair labor practice strike. But if they strike in response to an unfair labor practice by an employer, they can't be replaced permanently. But if the board is much less likely to conclude that employers are violating the law, then that protection becomes a lot less strong, because when workers strike in the absence of an unfair labor practice, they
can be permanently replaced. So that's just one example, but the entire legal climate changes, and if you have the agency no longer working to protect employees rights to organize, to bargain, to strike, the kind of ground on which workers are trying to enforce their rights. That said, we
should overstate the effect of a change in administration. If workers act collectively and engage in strikes, they frequently have enough economic power, even absence the threat of effective legal enforcement, to win in victories.
What is the status of Starbucks and union organizations. Apparently about five hundred Starbucks nationwide have voted to unionize. I mean, this has been going on for a long time. What stage are they at?
So lots and lots of Starbucks workers around the country have voted to organize, and it's really gunning actually, So it's just within the last few years unit from having zero organized Starbucks to several hundreds. The problem is that for quite a while Starbucks was roukeenly violating the law when workers try to organize, and also it's refusing to bargain,
and so that has closing down. But my understanding is that there has been a shift and that Starbucks is now bargaining with the union with the workers, and so I'm hopeful that we will see the workers reach the first contract and be able to continue to build their organization and other workers will be able to join the union as well.
So do you see labor advocates perhaps shifting from federal objectives to securing policy gains in states and cities, such as some of the ballot measures that we saw go through on Tuesday.
Yeah, I think the possibility of federal labor law reform has been elusive for quite a while and has now
certainly not achievable. At least, federal labor law reformat will further protect workers, right, So I expect that we'll continue to see workers organizing unions and engaging in collective action across the country the way they have been, but that we will also see more effort to try to win labor reforms at the state level in states where doing so is politically achievable, And workers really have achieved a great deal at the state level in recent years, providing
a model for what might happen in the future. So, just to give you a couple examples, workers have one significant increases in the minimum wage through ballot initiatives as well as through legislation at the state level, and they've been able to do that not only in blue states but also in really conservative states because there is overwhelming support for improving workers conditions even in red states. One thing is we're likely to see more Baalid initiative that
increase the minimum wage. Another thing is that I think we're likely to see more effort to pass state laws that enable workers to organize unions and bargains for workers who are not covered by federal law. So states can't pass union organizing and bargaining laws for workers who are covered by federal labor law, that's preempted. But for groups of workers who aren't covered by federal labor law, like gig workers, agricultural workers, and domestic workers, states can legislate.
And so what we saw in the last collection was a very successful effort in Massachusetts to pass a new system for uber and less drivers to organize unions and to bargain with their employers. And that's the kind of thing that I think we're likely to see more of going forward. It's a really important breakthrough. So like gig workers have a right to coluctive voice on their dogs and can work together to improve their conditions.
How much will the conservative judiciary play a part in toning down any gains at the state or city level.
Well, that's yet to be seen. The conservative judiciary is certainly going to play a role constraining what federal labor agencies do, because we've seen in the last few years the Supreme Court issue a series of decisions that really drastically undermine the ability of federal administrative agencies to function. So that's at the federal level. With respect to how the judiciary will respond to state initiatives, I think it's
an open question. On the one hand, this is a Supreme Court that's been very hostile to labor rights, but it's also a Supreme Court that purports to be solicitus of state rights, and so we'll have to see what happens on that front.
On election day, Trump appointed a pellic judges on the Ninth Circuit struck down a Biden requirement that government contractors pay at least fifteen dollars an hour, calling that minimum wage rule arbitrary and capricious.
That role is on very sound legal footing under existing precedent. Because the president has the authority under the federal contracting laws to set standards for federal contracts, as long as doing so in a way that advances the ecmomune efficiency and contract And there's lots of studies that show that when workers are paid a decent wage, they stay in their jobs longer, we have less turnover. And in the past, the president required a lot of difference to the president's
decisions with the respect to contracting. So the court has upheld orders by President Bush, by President Kennedy, by President Clinton, lots of different executive orders. This decision from the Ninth Circuit was really out of line was past precedent, but that's not necessarily surprising given what we've seen other conservative
Trump judges do. What I think it means going forward is that it had Tamala Harris one, it would have constrained her ability to set fair labor standers in federal contracting. I think we're unlikely to see President Trump trying to do that, and so in that sense, the decision we'll have relatively little effect.
I saw this. I thought it was interesting that some civil rights and environmental lawyers are trying to certify the first ever union at the Justice Department before Trump comes into office. Is there enough time for that?
It would be interesting to see. I think there's our motivation is strong. They, like other employees, have a right to organize, and there's a real danger that the country spaces if Trump makes good on his promises to try to politicize the government all the way down to staff line career workers. So Trump has threatened to transform what is essentially a civil service into politically loyal operatives. He wants to have the right to fire civil servants who
aren't loyal to his administration. But I think what's going on here as an effort in part to stand that and that could be really helpful not only for these lawyers, but also for our democracy if they succeed.
And Kate tell us about the challenges to the constitutionality of the National Labor Relations Board.
Yeah, so there's a series of challenges to administrative agencies. The ones that are being brought against the Board are being brought in part by Yon Musk by Tesla arguing that one that the board is unconstitutional because the board members serve for terms and can't be removed at will
by the president. That's a system that exists across many different agencies and has been in place really for the last hundred years that the Court is upheld, but several corporations are arguing that that violates the Constitution because it constrains presidential power. That's one argument. Another is that the NRB and the Department of Labor impermissively have administrative law judges the judicating cases that really should be done by
civil juries. Again, that's a system that's existed for the last century, but there are arguments are being brought that it violates the Separation of Powers and the Seventh Amendment to have administrative law judges deciding cases when there's monetary finds at stake. That builds on a decision from the
Supreme Court last year involving the sec. And then a third argument is kind of the broadest, which is that agencies like the Board that mix adjudicative functions with executive functions and rulemaking functions that apply the law and a host of different ways, that that violates the separation of powers.
Of these arguments would have been considered off the wall and frivolous just a few years ago, but in a series of cases over the last few years, the Supreme Court has accepted arguments that challenge in the basics of administrative law, and those are all being brought to bear now on the board, and a circuit split is developing where you have the Fifth Circuit accepting some of these arguments and the other circuits that have considered them have
said these are ridiculous. So it's quite possible that we'll see case get to the Supreme Court involving these constitutional challenges to the National Abor Relations Board and to other agencies as well.
Administrative law sort of turned on its head in so many ways in the last few years. Thanks so much, Kate. That's Professor Kate Andreas of Columbia Law School, coming up next on the Bloomberg Law Show. The US government's position before the Supreme Court in cases over healthcare treatment for transgender miners and federal regulations for building at home ghost guns will likely flip when Donald Trump takes office. I'm
June Grosso and you're listening to Bloomberg. With a change in administrations, the US government's position could flip in certain cases already before the Supreme Court. The disputes over healthcare treatments for transgender miners and federal regulations for building at home ghost guns are seen as too, where a Trump administration may reverse the positions held by the Biden administration. Joining me is constitutional law expert Harold Krent, a professor
at the Chicago Kent College of Law. The Biden administration has taken positions in certain cases before the Court. We can anticipate that the Trump administration will come in and say, forget about it, we don't agree. How often does that happen when there's a change in administrations.
Which relatively common, when the administration transitions that individuals and the new administration of a different perspective on the legal issues that the Supreme Court has already agreed to take.
And it depends on the posture of the case what happens next, And so even in the cases that the Court has already taken the year, there will be different kinds of reactions or different kinds of interventions by the new administration, the Trump administration to tie to influence or alter what the Supreme Court may decide.
And though the justices or some of the justices have seemed irritated at different times about the changes, I mean, did they accept the changes Basically in the past.
They've reacted in different ways, and they shouldn't be irritated. I mean politically, administrations have different legal views and they want to afford those views, and the court then sometimes will reman the case for further consideration in light of the change, depending upon the procedural posture, or sometimes they'll just take an amicus grief to hear what the new administration has to say about it legal issue. But at some point it's incredibly salient to factor in what the
new administration has to say. So, for instance, one of the most important cases so far argued in the Ghost Gun case. The centerpiece of the litigation is a twenty twenty two federal rule issued by the Bureau of Alcoholic Tobacco on firearms. If the administration wants to rescind that rule,
it moves out the entire controversy. So it would be of course relevant to hear whether or not the administration has taken action before the decision is issued to resin the rule that's at the heart of the case.
The Ghost Gun case has already been argued. One that hasn't been argued and that we can anticipate that the Trump administration may want to change positions on is the transgender rights case. Tell US about that.
Case's two cases, they're combined both with respect to Kentucky and Tennessee's law US limiting the rights to have transgender surgery for minors. But what was interesting in the case is the US intervened and argued that the Supreme Court should pay the US's petition for Surcherai after the Sixth
Circuit rejected the challenge to their rule. Because of the fact that there was only a split in the circuits on one issue, which was an eco protection issue as opposed to the substitute process issue which the private parties had raised in addition to the eco protection challenge to the limitations on gender affirming surgery, So the Supreme Court actually granted the US's petition and not those of the
private parties. So technically, if a new Trump administration could say we've changed our mind, and then there'd be no petition left for the Court to decide, and that is a technical possibility. Of course, there's still be a split in circuits on the meaning of the protection cause, So you would think that the Court could take then one of the other petitions and proceed to resolve in the case, but need not to if the Court wants to duck it.
You could simply say, well, the US has withdrawn its petition and therefore there's nothing left for us to decide. So it's a technical issue that would not be I think positive in terms of trying to resolve to sput in the circus on such an important issue. But technically a Trump administration could cause that dilemma and force the Court to make a decision.
And the Biden administration actually did change the Trump administration's position in a challenge to the Affordable Care Act that was three months after the case was argued. So the Biden administration has done it too.
Oh.
Absolutely, It's done by both Democratic and Republican in this rations. And I do think it's principle to do that because again a good example would be in the ghost gun case. If the batf rescinds its regulation, which you know, I don't think it should, but if it does, then by all stretch of imagination, the case should be rooted out.
And there's another interesting sort of example too. There's another ACA case it's likely to come up before the Court if the Fifth Circuit decided to hold unconstitutional part of the ACA, which allows a semi private group to determine which preventative services should be paid for under the insurance, preventative services for screen crew cancers, other kinds of medications for cardio, bachelor disease, and so forth, And under the statutory scheme and the ACA, a semi private group really
gets to determine, subject only to a very limited review by the administration, which of these kinds of medications insurance should cover. And the Fifth Circuit said that it was unconstitutional the best, so much authority in this to my private group. So the Trump administration could simply agree, and then that case would not be right for decision by the Supreme Court, and it would take another kind of controversy in a different circuit to wind its way up.
So you know, all these contexts, what the new administration thinks is relevant and also changes the procedural posture of the case, which may mean it's either less likely or more likely that the Supreme Court would take it.
And there are some cases involving EPA disputes. What happens in those cases and.
We've seen that before, I mean in the change from the Obama administration to the Trump administration.
But in that.
Case, if the EPA rule is changed, then the challenge to the EPA rule becomes moot, or at least practically moot, and it makes it much less likely that Supreme Court would entertain the case. And it's a parallel to the ghost gun case that we just say. So, any kind of challenge to a government rule, if the government rule changes,
is for all intents and purposes moved. Although the Court occasionally will say, well, the agency can change its mind again, and they say it's not completely mood and hear the case, and it's done that occasionally, but I think that's not necessarily a principle of practice, even though the Court has done it and it has the power to do that by saying that the agency can always change its mind again and come back with a rule. So we'll issue
the decision now. But again, normally, the best practice and the predicted practice would be for the court to not hear a case if the agency changes its regulation.
I'm asking everyone this question. I'm asking all the legal experts I speak to this question. Do you think there'll be any changes at the Supreme Court?
Well, there might be. I mean I think that the question is if it appears that the Republican sort of strung long hold on the Supreme Court may end. If the new second Trump administration may have a democratic successor, then certain conservative members of the Court would find it a convenient time to retire to allow President Trump to
fill their vacancies. So the you know, if you think about Justice Alito or Justice Thomas, and you know, another three years or so, they healthy reasons may stays really time for them to step down, and that would be a convenient time to do it to allow President Trump to replace them. That's speculative, and we certainly don't wish anybody ill health, but that's certainly a possibility. And you know, all of these changes in administration does give the Supreme
Court flexibility. So if there are sort of internal reasons for court to duck one case but then decide they wanted to reach another, the change of the administration gives them a good cover to advance their own sort of internal agendas if the agenda as exist, and I don't know that they do in the cases of the ghost guns, or in gender firming care or in the preventative ACA case,
but they could. And so the Court basically is at the end of the day, incredibly powerful in our country, and it has the discretion then to decide its own docket, and the excuse of the transition can even enhance their power decide which issues to address and which not to.
The Court has been on an administrative law tare against regulatory agencies. Do you think we'll still see that in a Trump administration.
That's a great question. I've been wondering that myself, because obviously their political leadings clash against their constitutional sort of preference for common law decision making as opposed to that by the regulatory state. And yet President Trump is going to re rely on the regulatory state to push his agenda. So it will be fascinating to see whether or not the Court continues its aggressive drive. But one of the issues that is interesting is what about the FED. The
FED traditionally has been considered to be independent. President Trump has railed against at times the independence of the FED, and so he might try to trigger a constitutional crisis by firing the head of the FED, and then the Court would have to decide whether or not Congress's restrictions on the removability of the FED is constitutional or not. So that is one instance when the Court might continue it's push towards a unitary executive, which of course would be embraced by President Trump.
Thanks so much for being on the show. Hal, That's Professor Harold Krent of the Chicago Kent College of Law. And that's it for this edition of the Bloomberg Law Podcast. Remember you've can always get the latest legal news by subscribing and listening to the show on Apple Podcasts, Spotify, and at Bloomberg dot com, Rush podcast, slash Law. I'm June Grosso and this is Bloomberg