WEBVTT - Trump Jeopardizes Union Gains & SCOTUS Flips 0:00:03.200 --> 0:00:08.000 This is Bloomberg Law with June Brusso from Bloomberg Radio. 0:00:09.600 --> 0:00:14.160 During Joe Biden's presidency, workers have racked up victories with 0:00:14.400 --> 0:00:19.160 historic union contracts with the Big three automakers Hollywood Studios, 0:00:19.480 --> 0:00:26.480 UPS and Boeing, and unions freshly established at Apple, Amazon, Microsoft, Chipotle, 0:00:26.760 --> 0:00:31.360 and Starbucks. Biden's appointees have issued rules such as eliminating 0:00:31.440 --> 0:00:35.640 non compete agreements and making more workers eligible for overtime. 0:00:35.880 --> 0:00:40.360 Whatever the details, a second Trump presidency is expected to 0:00:40.720 --> 0:00:45.800 negatively impact American labor and favor corporate America, flying back 0:00:45.920 --> 0:00:48.640 much of the leverage that workers have gained in the 0:00:48.720 --> 0:00:53.400 last four years. Witness an August twelfth interview on X 0:00:53.640 --> 0:00:58.440 where Trump praised Elon Musk for threatening to fire striking workers. 0:00:58.720 --> 0:01:01.680 I mean, I look at what you do. 0:00:59.880 --> 0:01:02.319 You want to quit? 0:01:02.840 --> 0:01:03.680 They go on strike. 0:01:03.720 --> 0:01:05.480 I won't mention the name of the company, but they 0:01:05.520 --> 0:01:06.600 go on strike and use it. 0:01:06.640 --> 0:01:07.120 That's okay. 0:01:07.160 --> 0:01:08.040 You're all gone. 0:01:08.200 --> 0:01:08.920 You're all gone. 0:01:08.959 --> 0:01:10.679 So every one of you is gone, and you are 0:01:10.720 --> 0:01:11.200 the greatest. 0:01:11.360 --> 0:01:14.680 Joining me is an expert in labor law, Kate Andreas, 0:01:14.760 --> 0:01:18.000 a professor at Columbia Law School. Kate, before we talk 0:01:18.040 --> 0:01:22.920 about the consequences for American workers of the next Trump administration. 0:01:23.400 --> 0:01:26.720 Let's talk about this case where the National Labor Relations 0:01:26.800 --> 0:01:31.280 Board overturned a nearly forty year old president. It involves 0:01:31.280 --> 0:01:36.480 Starbucks managers making threats to employees during a union election drive. 0:01:36.880 --> 0:01:39.360 Well, Starbucks managers in this case and an others have 0:01:39.440 --> 0:01:41.880 made a whole host of threats, but the one that 0:01:42.000 --> 0:01:45.360 was particularly an issue in this case was a threat 0:01:45.440 --> 0:01:50.680 by employers that if workers decided to organize, that would 0:01:50.800 --> 0:01:54.440 change their relationship with management in a negative way. So 0:01:54.480 --> 0:01:58.000 the just blow how that that statement was permissible because 0:01:58.040 --> 0:02:01.480 there was an old board decision dating from the nineteen 0:02:01.520 --> 0:02:06.920 eighty five, which held that as a categorical matter, when 0:02:06.960 --> 0:02:10.799 employers stay to workers that union organizing it's going to 0:02:10.880 --> 0:02:13.840 change the dynamic with the company, that that does not 0:02:14.160 --> 0:02:17.200 count as a threat. And so the judge below was 0:02:17.240 --> 0:02:21.520 applying that precedent that dated from the nineteen eighty What 0:02:21.600 --> 0:02:25.360 the board said here was that that precedent should be 0:02:25.400 --> 0:02:30.880 overruled because it's inconsistent with the statute's prohibition on employers 0:02:30.960 --> 0:02:33.880 coercing employees and the exercise of their union rights, and 0:02:33.919 --> 0:02:38.280 it's also intention with other doctrine and including Supreme Court cases, 0:02:38.600 --> 0:02:43.520 would say that employers can't threaten workers who speak to 0:02:43.600 --> 0:02:44.400 organize unions. 0:02:44.960 --> 0:02:47.320 So it was a forty year old precedent and they 0:02:47.360 --> 0:02:47.919 threw it out. 0:02:48.200 --> 0:02:50.400 They overruled it. But it was a forty year old 0:02:50.400 --> 0:02:54.519 president that was in considerable tension with other cases, including 0:02:54.880 --> 0:02:58.919 the Supreme Court decision in an even older precedent called 0:02:59.040 --> 0:03:01.880 Nlar reversus get Fell that dates from the nineteen sixties. 0:03:02.080 --> 0:03:05.520 So the board overruled that old case, but said that 0:03:05.560 --> 0:03:08.320 it wasn't going to apply the new rules of Starbucks 0:03:08.360 --> 0:03:10.240 in this case, and that it would only apply the 0:03:10.280 --> 0:03:14.840 new decision prospectively. That said, Starbucks in the same case 0:03:14.919 --> 0:03:19.400 made a lot of other threats which did violate established law, 0:03:19.639 --> 0:03:23.720 and both the Alegity Administrative Law judge and the Board 0:03:23.760 --> 0:03:26.640 found Starbucks liable of unfairlya for practices based on the 0:03:26.680 --> 0:03:27.400 other threats. 0:03:27.560 --> 0:03:32.000 With this decision, what kind of threats can employers make? 0:03:32.720 --> 0:03:34.920 So employers are not supposed to be making any threats 0:03:34.960 --> 0:03:37.840 when workers try to organize unions that is prohibited by 0:03:37.880 --> 0:03:41.120 the law. What employers can do and what the Supreme 0:03:41.160 --> 0:03:43.600 Court said employers can do in the nineteen sixty nine 0:03:43.600 --> 0:03:49.000 decision is employers can make predictions about what might happen 0:03:49.040 --> 0:03:51.480 in the future regarding things that are outside of the 0:03:51.560 --> 0:03:55.840 employer's control. But when the employers start threatening changes dates 0:03:55.840 --> 0:03:58.840 that are within the employer's control, like we're going to 0:03:58.880 --> 0:04:02.080 change our relationship with you, that becomes a threat and 0:04:02.120 --> 0:04:04.920 it's not permitted because workers have the right to organize 0:04:05.040 --> 0:04:08.160 unions free from coercion by employers. 0:04:08.560 --> 0:04:11.440 If this is in line with prior precedent, why did 0:04:11.440 --> 0:04:14.160 it take forty years for it to be overturned. 0:04:14.720 --> 0:04:18.120 Well, well, I think this board has made a concerted 0:04:18.200 --> 0:04:21.520 effort to look at the doctrine and try to make 0:04:21.560 --> 0:04:23.839 sure it is really all in line with the statute 0:04:23.880 --> 0:04:27.520 and with the protection of workers to organize unions. And 0:04:27.560 --> 0:04:30.040 so there are a number of long standing precedents which 0:04:30.040 --> 0:04:32.719 are intention with those fundamental statute or commitments that the 0:04:32.720 --> 0:04:35.440 Board has been taking a look at and reconsidering in 0:04:35.480 --> 0:04:36.400 the last four years. 0:04:36.560 --> 0:04:39.880 So Starbucks said this ruling unfairly applies a new legal 0:04:39.960 --> 0:04:44.760 standard on Starbucks retroactively, which the NLRB should not do. 0:04:44.920 --> 0:04:47.839 We're considering our next steps. But you said they weren't 0:04:47.880 --> 0:04:51.400 going to make the ruling retroactive, right, Yeah. 0:04:51.480 --> 0:04:54.239 My understanding of the opinion and my reading of it 0:04:54.279 --> 0:04:56.479 is that the Board very clearly said that it was 0:04:56.520 --> 0:04:59.960 only going to apply this rule prospectively for the concern 0:05:00.040 --> 0:05:02.200 that Cerbuck places that the Board wants to make sure 0:05:02.240 --> 0:05:04.200 that the law is clear to those who are covered 0:05:04.200 --> 0:05:07.560 by it, and so this new interpretation of the law 0:05:07.560 --> 0:05:10.960 that brings the law into alignment with the Supreme Court's 0:05:10.960 --> 0:05:13.200 holdings is only going to apply going forward. 0:05:14.080 --> 0:05:19.240 Now, this is the first presidential ruling since the country 0:05:19.440 --> 0:05:22.599 voted to send Donald Trump back to the White House, 0:05:22.920 --> 0:05:25.599 and it was three to one, the three Democrats to 0:05:25.640 --> 0:05:30.040 the one Republican. What likely will happen to the Board 0:05:30.560 --> 0:05:32.080 when Trump takes office. 0:05:32.440 --> 0:05:35.359 I think that we will see the Board over time 0:05:35.560 --> 0:05:39.440 become much more hostile to workers and to workers' rights 0:05:39.440 --> 0:05:43.880 to organize unions. How quickly that happens, though, is an 0:05:43.880 --> 0:05:48.080 open question. The Board is an independent agency, which means 0:05:48.080 --> 0:05:50.440 that the President does not, under the law, have the 0:05:50.520 --> 0:05:54.279 right to fire the Board members. Rather, they serve for terms, 0:05:54.320 --> 0:05:58.000 and so the Board's composition will turn over with time. 0:05:58.600 --> 0:06:01.719 It all goes according to the stat that said, a 0:06:01.880 --> 0:06:04.960 number of business groups have taken the position that those 0:06:05.000 --> 0:06:07.560 protections that the board members have in order to create 0:06:07.560 --> 0:06:11.440 independence are unconstitutional. So it's possible, depending on what happens 0:06:11.440 --> 0:06:14.400 with the litigation challenging the constitutionality of the Board, and 0:06:14.440 --> 0:06:17.680 also depending on what Trump does, that the composition of 0:06:17.680 --> 0:06:21.119 the Board could change more quickly. In any event, once 0:06:21.240 --> 0:06:24.640 Trump has appointed a majority of the Board, I think 0:06:24.640 --> 0:06:28.839 we're likely to see the board rolled back many protections 0:06:28.880 --> 0:06:32.719 for workers right that the Biden Board has affirmed and 0:06:32.839 --> 0:06:34.440 enforced over the last four years. 0:06:34.760 --> 0:06:38.320 Tell us about the role of the General Council Jennifer 0:06:38.600 --> 0:06:42.279 of Rutso, I mean, he can change her position right away, right. 0:06:42.760 --> 0:06:46.760 Right, So. The General Council is the person within the 0:06:46.800 --> 0:06:52.359 board who prosecutes cases and who brings cases, and Jennifer 0:06:52.400 --> 0:06:58.080 Brusso has been very energetic and effective at prosecuting violations 0:06:58.120 --> 0:07:01.880 of the law and making sure that the NOTHERA is 0:07:01.920 --> 0:07:05.039 interpreted in ways that really protect workers rights to organize 0:07:05.040 --> 0:07:08.680 em bargain. I think we can expect that President Trump 0:07:08.800 --> 0:07:11.680 will replace her. He doesn't have to, but I think 0:07:11.680 --> 0:07:15.040 it's likely that he will replace her with someone who's 0:07:15.400 --> 0:07:17.960 much more pro business and anti worker. 0:07:18.560 --> 0:07:23.160 During Joe Biden's presidency, can you describe the strides the 0:07:23.160 --> 0:07:25.800 accomplishments that unions have made. 0:07:26.560 --> 0:07:28.840 Yeah, I mean in lots of ways. I think President 0:07:28.840 --> 0:07:32.400 Biden was one of the most pro union presidents that 0:07:32.440 --> 0:07:36.440 we've had in a very long time, everything ranging from 0:07:36.680 --> 0:07:40.640 the President's decision to join ticket lines to his efforts 0:07:40.680 --> 0:07:45.040 to get employers to settle strikes. That's the president's actions himself, 0:07:45.400 --> 0:07:48.360 but also the National Labor Relations Board and the Department 0:07:48.400 --> 0:07:52.560 of Labor both acted in ways, promulgated rules and issues 0:07:52.600 --> 0:07:55.560 decisions to protect workers rights. So just give you a 0:07:55.560 --> 0:07:59.560 couple of examples of achievements by the board. The National 0:07:59.640 --> 0:08:04.040 Labor Board has made union elections faster. They have also 0:08:04.520 --> 0:08:07.400 changed the standard for who counts as an employer in 0:08:07.480 --> 0:08:12.000 order to try to hold employers to exercise power over 0:08:12.080 --> 0:08:16.240 supply chain or reliable as well as the bordinate subcontracted employers. 0:08:16.320 --> 0:08:19.440 They reversed a number of Trump era rulings that limited 0:08:19.760 --> 0:08:22.720 the ability of workers to organize that limited access to 0:08:22.760 --> 0:08:25.920 the workplace. They made it harder for employers to issue 0:08:26.000 --> 0:08:29.080 rules that appear neutral but have the effect of killing 0:08:29.080 --> 0:08:33.480 workers organizing drives. They sought injunctions to try to reinstate 0:08:33.559 --> 0:08:37.720 workers who are illegually inspired, and they also began to 0:08:38.240 --> 0:08:41.800 seek bargaining orders to lein employers and repeatedly violate the law. 0:08:42.200 --> 0:08:44.760 They issued a stenter that made it easier for the 0:08:44.760 --> 0:08:48.880 Board to order employers to bargain with unions in those circumstances. So, 0:08:48.920 --> 0:08:51.800 in lots of different ways, they made it easier for 0:08:51.840 --> 0:08:54.760 workers to organize unions and made it harder for employers 0:08:54.800 --> 0:08:57.960 to violate employee rights. In the context of the Department 0:08:57.960 --> 0:09:00.880 of Labor as well, they tried to change the standards 0:09:00.920 --> 0:09:05.160 so it's harder to misclassify employees as independent contractors. There 0:09:05.200 --> 0:09:08.240 are various rules that they tried to promulgate to protect 0:09:08.320 --> 0:09:11.840 workers from health and safety violations, for example, from extreme heat, 0:09:12.360 --> 0:09:16.959 and they've gone after child labor violations aggressively. So both 0:09:17.000 --> 0:09:19.600 the National Labor Relations Board and the Department of Labor 0:09:19.679 --> 0:09:22.440 have really worked very hard over the last four years 0:09:22.800 --> 0:09:25.920 to make sure that the law protects workers right and 0:09:25.960 --> 0:09:28.160 they have worked hard to enforce the law as well. 0:09:28.679 --> 0:09:32.240 So that sounds like a lot of accomplishments. I mean, 0:09:32.360 --> 0:09:37.160 how fast can they be unwound or taken away? You know, 0:09:37.200 --> 0:09:39.360 in a Trump administration, I think. 0:09:39.160 --> 0:09:42.040 Something can be done right away. So enforcement policy, we're 0:09:42.080 --> 0:09:45.480 likely to see changed very quickly. So currently, as I said, 0:09:45.520 --> 0:09:48.920 the Biden Department of Labor has been aggressively enforcing against 0:09:48.960 --> 0:09:52.120 child labor violations. They've also been trying to go after 0:09:52.520 --> 0:09:55.600 what's sometimes known as apex corporation, so big corporations that 0:09:55.800 --> 0:09:58.480 affect a lot of the labor markets. We're likely to 0:09:58.520 --> 0:10:01.560 see the enforcement policy means right away, and for the 0:10:01.600 --> 0:10:05.920 Trump administration to adopt a more conciliatory enforcement approach. It 0:10:06.000 --> 0:10:10.079 takes longer to change rules. Those have to be changed 0:10:10.120 --> 0:10:15.400 either through adjudications individual cases or through notice and comment 0:10:15.480 --> 0:10:19.440 rulemaking where the agency tells the public what it plans 0:10:19.440 --> 0:10:23.319 to do or what it's considering, allows effective parties to comment, 0:10:23.920 --> 0:10:27.200 considers those comments, and then issues a new rule. So 0:10:27.240 --> 0:10:31.800 that's enforcement is quick, rule change is slower. The wildcard question, 0:10:31.920 --> 0:10:34.640 I think, is what happens with all the constitutional challenges 0:10:34.679 --> 0:10:38.199 to the agencies. So if those move quickly, we could 0:10:38.240 --> 0:10:41.319 see really radical changes with the nationallyb relation sport and 0:10:41.360 --> 0:10:43.240 the Department of Labor's ability to function. 0:10:43.679 --> 0:10:46.880 Coming up next, I'll continue this conversation with Columbia Law 0:10:46.880 --> 0:10:51.079 School professor Kate Andreas. We'll talk about workers' advocates shifting 0:10:51.120 --> 0:10:55.520 their focus to states and cities. This is bloomberg. Unions 0:10:55.559 --> 0:10:59.960 have been invigorated during the Biden administration with historic union 0:11:00.080 --> 0:11:05.440 in contracts and successful organizing efforts. A second Trump presidency 0:11:05.920 --> 0:11:11.640 is expected to negatively impact American labor and favor corporate America, 0:11:11.760 --> 0:11:14.920 flying back much of the leverage that workers have gained 0:11:14.960 --> 0:11:18.079 in the last four years. I've been talking to Columbia 0:11:18.160 --> 0:11:22.000 Law School professor Kate Andreas, an expert in labor law. 0:11:22.720 --> 0:11:26.880 You know, when he ran, Trump courted union workers and 0:11:27.000 --> 0:11:29.520 he promised that he would do better for them than 0:11:29.559 --> 0:11:33.840 Biden did. Last time Trump ran the government, however, it 0:11:33.880 --> 0:11:34.960 was a different story. 0:11:35.400 --> 0:11:39.000 I think what we know from Trump's track records is 0:11:39.000 --> 0:11:41.319 that when he was in charge of the government, we 0:11:41.520 --> 0:11:46.120 had labor agencies that were very pro business and very 0:11:46.160 --> 0:11:50.720 hostile to workers. So I think that's likely what we 0:11:50.760 --> 0:11:53.840 will see again. We can be hopeful that maybe that's 0:11:53.880 --> 0:11:56.040 not the case, but I think that the past practice 0:11:56.080 --> 0:11:58.760 suggests that we're likely to see a lot of anti 0:11:58.760 --> 0:12:01.160 worker activity from this administration. 0:12:01.800 --> 0:12:05.560 Daniel Vicenti, a regional director for the UAW, said everything 0:12:05.600 --> 0:12:10.760 becomes harder, from organizing to negotiating strong contracts to strikes 0:12:11.240 --> 0:12:14.400 I mean, why would things like strikes become more difficult. 0:12:14.520 --> 0:12:16.840 Yeah, I think he's right that both bargaining and strikes 0:12:16.840 --> 0:12:19.040 can become more difficult. So first of all, say something 0:12:19.080 --> 0:12:21.959 about bargaining and then turn to strikes. The law obligates 0:12:22.040 --> 0:12:25.120 employers to bargain in good faith, but when employers refuse 0:12:25.200 --> 0:12:28.480 to do so, question is what happens. And this agency 0:12:28.520 --> 0:12:31.079 has tried to obligate employers to bargain good faith, and 0:12:31.120 --> 0:12:34.079 the President has also intervened in various contract issutes to 0:12:34.160 --> 0:12:37.800 encourage employers to bargain and to reach settlements that benefit 0:12:37.840 --> 0:12:40.319 workers and so that workers can get their fair share 0:12:40.360 --> 0:12:43.640 of increases in profits. With respective strikes as well, the 0:12:43.720 --> 0:12:47.240 law protects the right to strike. It prevents workers from 0:12:47.280 --> 0:12:50.480 being permanently replaced if they go on what's called an 0:12:50.559 --> 0:12:54.600 unfair labor practice strike. But if they strike in response 0:12:54.640 --> 0:12:57.240 to an unfair labor practice by an employer, they can't 0:12:57.280 --> 0:13:01.800 be replaced permanently. But if the board is much less 0:13:01.880 --> 0:13:06.000 likely to conclude that employers are violating the law, then 0:13:06.040 --> 0:13:09.920 that protection becomes a lot less strong, because when workers 0:13:10.000 --> 0:13:12.360 strike in the absence of an unfair labor practice, they 0:13:12.360 --> 0:13:15.400 can be permanently replaced. So that's just one example, but 0:13:15.440 --> 0:13:18.920 the entire legal climate changes, and if you have the 0:13:19.040 --> 0:13:23.400 agency no longer working to protect employees rights to organize, 0:13:23.440 --> 0:13:26.559 to bargain, to strike, the kind of ground on which 0:13:26.800 --> 0:13:31.000 workers are trying to enforce their rights. That said, we 0:13:31.000 --> 0:13:35.640 should overstate the effect of a change in administration. If 0:13:35.679 --> 0:13:39.800 workers act collectively and engage in strikes, they frequently have 0:13:39.960 --> 0:13:44.240 enough economic power, even absence the threat of effective legal enforcement, 0:13:44.720 --> 0:13:46.160 to win in victories. 0:13:46.880 --> 0:13:52.160 What is the status of Starbucks and union organizations. Apparently 0:13:52.240 --> 0:13:58.080 about five hundred Starbucks nationwide have voted to unionize. I mean, 0:13:58.160 --> 0:14:00.720 this has been going on for a long time. What 0:14:00.800 --> 0:14:01.760 stage are they at? 0:14:02.120 --> 0:14:04.960 So lots and lots of Starbucks workers around the country 0:14:04.960 --> 0:14:07.920 have voted to organize, and it's really gunning actually, So 0:14:08.000 --> 0:14:10.080 it's just within the last few years unit from having 0:14:10.280 --> 0:14:14.160 zero organized Starbucks to several hundreds. The problem is that 0:14:14.240 --> 0:14:17.680 for quite a while Starbucks was roukeenly violating the law 0:14:17.679 --> 0:14:20.560 when workers try to organize, and also it's refusing to bargain, 0:14:21.120 --> 0:14:24.080 and so that has closing down. But my understanding is 0:14:24.120 --> 0:14:26.600 that there has been a shift and that Starbucks is 0:14:26.640 --> 0:14:29.600 now bargaining with the union with the workers, and so 0:14:29.720 --> 0:14:32.680 I'm hopeful that we will see the workers reach the 0:14:32.680 --> 0:14:35.160 first contract and be able to continue to build their 0:14:35.520 --> 0:14:37.840 organization and other workers will be able to join the 0:14:37.920 --> 0:14:38.600 union as well. 0:14:38.840 --> 0:14:43.040 So do you see labor advocates perhaps shifting from federal 0:14:43.280 --> 0:14:48.520 objectives to securing policy gains in states and cities, such 0:14:48.560 --> 0:14:52.240 as some of the ballot measures that we saw go 0:14:52.360 --> 0:14:53.920 through on Tuesday. 0:14:54.360 --> 0:14:57.160 Yeah, I think the possibility of federal labor law reform 0:14:57.800 --> 0:15:00.000 has been elusive for quite a while and has now 0:15:00.240 --> 0:15:03.680 certainly not achievable. At least, federal labor law reformat will 0:15:03.760 --> 0:15:06.760 further protect workers, right, So I expect that we'll continue 0:15:06.800 --> 0:15:10.160 to see workers organizing unions and engaging in collective action 0:15:10.240 --> 0:15:12.200 across the country the way they have been, but that 0:15:12.280 --> 0:15:15.600 we will also see more effort to try to win 0:15:16.000 --> 0:15:19.440 labor reforms at the state level in states where doing 0:15:19.440 --> 0:15:22.520 so is politically achievable, And workers really have achieved a 0:15:22.520 --> 0:15:26.080 great deal at the state level in recent years, providing 0:15:26.160 --> 0:15:28.360 a model for what might happen in the future. So, 0:15:28.480 --> 0:15:31.240 just to give you a couple examples, workers have one 0:15:31.400 --> 0:15:35.320 significant increases in the minimum wage through ballot initiatives as 0:15:35.320 --> 0:15:38.040 well as through legislation at the state level, and they've 0:15:38.040 --> 0:15:40.120 been able to do that not only in blue states 0:15:40.160 --> 0:15:43.119 but also in really conservative states because there is overwhelming 0:15:43.120 --> 0:15:47.800 support for improving workers conditions even in red states. One 0:15:47.800 --> 0:15:49.960 thing is we're likely to see more Baalid initiative that 0:15:50.000 --> 0:15:52.720 increase the minimum wage. Another thing is that I think 0:15:52.760 --> 0:15:56.119 we're likely to see more effort to pass state laws 0:15:56.280 --> 0:16:00.640 that enable workers to organize unions and bargains for workers 0:16:00.640 --> 0:16:04.080 who are not covered by federal law. So states can't 0:16:04.120 --> 0:16:08.800 pass union organizing and bargaining laws for workers who are 0:16:08.800 --> 0:16:12.320 covered by federal labor law, that's preempted. But for groups 0:16:12.320 --> 0:16:15.160 of workers who aren't covered by federal labor law, like 0:16:15.280 --> 0:16:20.080 gig workers, agricultural workers, and domestic workers, states can legislate. 0:16:20.160 --> 0:16:21.920 And so what we saw in the last collection was 0:16:21.960 --> 0:16:25.400 a very successful effort in Massachusetts to pass a new 0:16:25.640 --> 0:16:28.640 system for uber and less drivers to organize unions and 0:16:28.680 --> 0:16:31.040 to bargain with their employers. And that's the kind of 0:16:31.080 --> 0:16:32.680 thing that I think we're likely to see more of 0:16:32.720 --> 0:16:35.880 going forward. It's a really important breakthrough. So like gig 0:16:35.880 --> 0:16:39.760 workers have a right to coluctive voice on their dogs 0:16:39.760 --> 0:16:42.000 and can work together to improve their conditions. 0:16:42.320 --> 0:16:47.160 How much will the conservative judiciary play a part in 0:16:47.440 --> 0:16:51.680 toning down any gains at the state or city level. 0:16:51.800 --> 0:16:56.880 Well, that's yet to be seen. The conservative judiciary is 0:16:57.200 --> 0:17:02.680 certainly going to play a role constraining what federal labor 0:17:02.720 --> 0:17:05.760 agencies do, because we've seen in the last few years 0:17:05.840 --> 0:17:08.960 the Supreme Court issue a series of decisions that really 0:17:09.040 --> 0:17:13.880 drastically undermine the ability of federal administrative agencies to function. 0:17:14.359 --> 0:17:16.880 So that's at the federal level. With respect to how 0:17:16.960 --> 0:17:20.240 the judiciary will respond to state initiatives, I think it's 0:17:20.240 --> 0:17:22.119 an open question. On the one hand, this is a 0:17:22.119 --> 0:17:25.159 Supreme Court that's been very hostile to labor rights, but 0:17:25.200 --> 0:17:27.959 it's also a Supreme Court that purports to be solicitus 0:17:28.000 --> 0:17:30.080 of state rights, and so we'll have to see what 0:17:30.240 --> 0:17:31.520 happens on that front. 0:17:32.000 --> 0:17:35.240 On election day, Trump appointed a pellic judges on the 0:17:35.359 --> 0:17:39.760 Ninth Circuit struck down a Biden requirement that government contractors 0:17:39.760 --> 0:17:43.280 pay at least fifteen dollars an hour, calling that minimum 0:17:43.280 --> 0:17:45.199 wage rule arbitrary and capricious. 0:17:45.680 --> 0:17:49.440 That role is on very sound legal footing under existing precedent. 0:17:49.520 --> 0:17:53.639 Because the president has the authority under the federal contracting 0:17:53.720 --> 0:17:57.040 laws to set standards for federal contracts, as long as 0:17:57.119 --> 0:17:59.360 doing so in a way that advances the ecmomune efficiency 0:17:59.400 --> 0:18:01.720 and contract And there's lots of studies that show that 0:18:01.760 --> 0:18:04.280 when workers are paid a decent wage, they stay in 0:18:04.320 --> 0:18:07.439 their jobs longer, we have less turnover. And in the past, 0:18:07.840 --> 0:18:10.280 the president required a lot of difference to the president's 0:18:10.280 --> 0:18:13.280 decisions with the respect to contracting. So the court has 0:18:13.359 --> 0:18:17.160 upheld orders by President Bush, by President Kennedy, by President Clinton, 0:18:17.800 --> 0:18:20.600 lots of different executive orders. This decision from the Ninth 0:18:20.600 --> 0:18:23.520 Circuit was really out of line was past precedent, but 0:18:23.920 --> 0:18:27.280 that's not necessarily surprising given what we've seen other conservative 0:18:27.560 --> 0:18:30.200 Trump judges do. What I think it means going forward 0:18:30.280 --> 0:18:32.520 is that it had Tamala Harris one, it would have 0:18:32.560 --> 0:18:37.359 constrained her ability to set fair labor standers in federal contracting. 0:18:37.680 --> 0:18:39.960 I think we're unlikely to see President Trump trying to 0:18:40.000 --> 0:18:42.280 do that, and so in that sense, the decision we'll 0:18:42.320 --> 0:18:44.479 have relatively little effect. 0:18:45.119 --> 0:18:47.600 I saw this. I thought it was interesting that some 0:18:47.680 --> 0:18:51.199 civil rights and environmental lawyers are trying to certify the 0:18:51.240 --> 0:18:55.520 first ever union at the Justice Department before Trump comes 0:18:55.600 --> 0:18:57.840 into office. Is there enough time for that? 0:18:58.200 --> 0:19:00.160 It would be interesting to see. I think there's our 0:19:00.160 --> 0:19:04.440 motivation is strong. They, like other employees, have a right 0:19:04.480 --> 0:19:08.159 to organize, and there's a real danger that the country 0:19:08.200 --> 0:19:11.600 spaces if Trump makes good on his promises to try 0:19:11.640 --> 0:19:14.679 to politicize the government all the way down to staff 0:19:15.119 --> 0:19:19.520 line career workers. So Trump has threatened to transform what 0:19:19.720 --> 0:19:25.280 is essentially a civil service into politically loyal operatives. He 0:19:25.359 --> 0:19:27.920 wants to have the right to fire civil servants who 0:19:27.960 --> 0:19:30.600 aren't loyal to his administration. But I think what's going 0:19:30.600 --> 0:19:32.960 on here as an effort in part to stand that 0:19:33.240 --> 0:19:36.520 and that could be really helpful not only for these lawyers, 0:19:36.520 --> 0:19:38.640 but also for our democracy if they succeed. 0:19:39.040 --> 0:19:43.280 And Kate tell us about the challenges to the constitutionality 0:19:43.520 --> 0:19:45.679 of the National Labor Relations Board. 0:19:46.320 --> 0:19:50.040 Yeah, so there's a series of challenges to administrative agencies. 0:19:50.400 --> 0:19:52.720 The ones that are being brought against the Board are 0:19:52.720 --> 0:19:55.480 being brought in part by Yon Musk by Tesla arguing 0:19:55.520 --> 0:19:59.640 that one that the board is unconstitutional because the board 0:19:59.720 --> 0:20:02.840 members serve for terms and can't be removed at will 0:20:02.880 --> 0:20:05.680 by the president. That's a system that exists across many 0:20:05.720 --> 0:20:08.080 different agencies and has been in place really for the 0:20:08.160 --> 0:20:10.879 last hundred years that the Court is upheld, but several 0:20:10.920 --> 0:20:14.359 corporations are arguing that that violates the Constitution because it 0:20:14.400 --> 0:20:18.800 constrains presidential power. That's one argument. Another is that the 0:20:18.960 --> 0:20:23.240 NRB and the Department of Labor impermissively have administrative law 0:20:23.320 --> 0:20:26.160 judges the judicating cases that really should be done by 0:20:26.560 --> 0:20:30.119 civil juries. Again, that's a system that's existed for the 0:20:30.160 --> 0:20:32.720 last century, but there are arguments are being brought that 0:20:32.760 --> 0:20:35.440 it violates the Separation of Powers and the Seventh Amendment 0:20:35.560 --> 0:20:39.120 to have administrative law judges deciding cases when there's monetary 0:20:39.480 --> 0:20:42.119 finds at stake. That builds on a decision from the 0:20:42.119 --> 0:20:45.480 Supreme Court last year involving the sec. And then a 0:20:45.520 --> 0:20:48.480 third argument is kind of the broadest, which is that 0:20:48.560 --> 0:20:53.520 agencies like the Board that mix adjudicative functions with executive 0:20:53.520 --> 0:20:56.200 functions and rulemaking functions that apply the law and a 0:20:56.320 --> 0:20:59.520 host of different ways, that that violates the separation of powers. 0:21:00.080 --> 0:21:02.359 Of these arguments would have been considered off the wall 0:21:02.400 --> 0:21:05.080 and frivolous just a few years ago, but in a 0:21:05.160 --> 0:21:07.600 series of cases over the last few years, the Supreme 0:21:07.640 --> 0:21:11.680 Court has accepted arguments that challenge in the basics of 0:21:11.720 --> 0:21:14.840 administrative law, and those are all being brought to bear 0:21:14.880 --> 0:21:18.680 now on the board, and a circuit split is developing 0:21:19.080 --> 0:21:21.159 where you have the Fifth Circuit accepting some of these 0:21:21.240 --> 0:21:23.520 arguments and the other circuits that have considered them have 0:21:23.960 --> 0:21:26.520 said these are ridiculous. So it's quite possible that we'll 0:21:26.560 --> 0:21:29.959 see case get to the Supreme Court involving these constitutional 0:21:30.080 --> 0:21:32.760 challenges to the National Abor Relations Board and to other 0:21:32.800 --> 0:21:33.720 agencies as well. 0:21:33.840 --> 0:21:36.320 Administrative law sort of turned on its head in so 0:21:36.400 --> 0:21:39.359 many ways in the last few years. Thanks so much, Kate. 0:21:39.600 --> 0:21:43.280 That's Professor Kate Andreas of Columbia Law School, coming up 0:21:43.320 --> 0:21:46.920 next on the Bloomberg Law Show. The US government's position 0:21:47.080 --> 0:21:51.240 before the Supreme Court in cases over healthcare treatment for 0:21:51.359 --> 0:21:55.760 transgender miners and federal regulations for building at home ghost 0:21:55.880 --> 0:22:00.600 guns will likely flip when Donald Trump takes office. I'm 0:22:00.680 --> 0:22:04.560 June Grosso and you're listening to Bloomberg. With a change 0:22:04.560 --> 0:22:09.479 in administrations, the US government's position could flip in certain 0:22:09.520 --> 0:22:14.120 cases already before the Supreme Court. The disputes over healthcare 0:22:14.160 --> 0:22:19.080 treatments for transgender miners and federal regulations for building at 0:22:19.080 --> 0:22:22.440 home ghost guns are seen as too, where a Trump 0:22:22.520 --> 0:22:26.880 administration may reverse the positions held by the Biden administration. 0:22:27.359 --> 0:22:30.920 Joining me is constitutional law expert Harold Krent, a professor 0:22:30.920 --> 0:22:34.480 at the Chicago Kent College of Law. The Biden administration 0:22:34.560 --> 0:22:38.720 has taken positions in certain cases before the Court. We 0:22:38.800 --> 0:22:42.520 can anticipate that the Trump administration will come in and say, 0:22:42.920 --> 0:22:45.840 forget about it, we don't agree. How often does that 0:22:46.040 --> 0:22:49.400 happen when there's a change in administrations. 0:22:48.800 --> 0:22:54.480 Which relatively common, when the administration transitions that individuals and 0:22:54.480 --> 0:22:56.600 the new administration of a different perspective on the legal 0:22:56.640 --> 0:22:59.680