To put it mildly, this is an unusual time for federal labor law. The NLRB is without a quorum again after the Supreme Court stayed an appeal court’s decision to reinstate Gwynne Wilcox to the Board. The whiplash effect is real, and as a result, the NLRB is once again effectively paralyzed, which does halt cases against employers and leaves them without guidance on navigating workplace disputes.
That ambiguity can be dangerous since it can cause lengthy delays in resolving labor issues. It may add to worker frustrations and allow negative workplace issues to fester.
The same result could rear its head after a Trump executive order (EO) instructed the reduction of the Federal Mediation and Conciliation Service (FMCS). This already relatively small agency is now reportedly down to a skeleton crew in D.C., according to a lawsuit filed by the AFL-CIO and from several unions including IAM, AFSCME, SEIU, AFT, and UFCW. Through this suit, the plaintiffs ask a court to block Trumps’s EO and reinstate workers after DOGE reduced the FMCS staff by 90+% and closed field offices.
Will dismantling the FMCS hurt unions?
Of course. Yet it cannot be overlooked that a massive chunk of the free services supplied by the FMCS, which brokers disputes related to collective bargaining, involve employers in the private sector. That detail matters when substantially curtailing the agency, as we’ll see below.
Why would the Trump administration want to render FMCS incapable of its stated statutory purpose?
That’s a good question and not one with an easy answer. This move may be designed to thwart Big Labor’s influence through inertia, but the opposite effect might occur in the following ways:
- Expired contracts will more frequently stay that way, which adds up to more strikes and lockouts, which are expensive for employers.
- FMCS provides mediation services and arbitration panels after receiving notices from employers who wish to terminate or change collective bargaining agreements. Reportedly, employers send over 10,000 requests annually to this agency.
- With fewer mediators now available at the FMCS – and if the lawsuit papers are to be believed, that number has been reduced from 80 to 5 – employers will soon be forced to turn to private mediation and arbitration, which are not cheap.
Another head scratcher: An FMCS statement claims that the agency operated on a 2024 budget of $55 million while reportedly helping save $500 million annually for the economy. And the residual effects could also be immeasurable if these mediation cases exist when unions are already installed in a workplace, where employers cannot afford further erosion of worker trust. If contract disputes or strikes drag on further than necessary, nobody benefits.
The unions’ lawsuit is based upon the claim that closing the independent agency, which was established by Congress in 1947 and can legally only be dissolved by an act of Congress, is unconstitutional and violates the Administrative Procedure Act. Of course, the FMCS is, like the NLRB, not technically shuttered, but it is being significantly hindered. These strange new waters are growing choppier by the moment, and they don’t appear to be clearing anytime soon.
