Guest Post: How President Trump Could Surprise with Improvement for the NLRB and a Boost for the Middle Class

Charlie J. Morris is Professor Emeritus at the Dedman School of Law, Southern Methodist University.

This is a piece whose unlikely outcome is based on wishful thinking.  It’s what I want to believe, not what I really believe.  But whether I’m right or wrong, the information that follows should prove useful for general understanding of the National Labor Relations Act (NLRA or Act) and its policy, and perhaps someday for improving the functioning of the National Labor Relations Board (NLRB or Board).

As a result of the Presidential election, there is one evidentiary fact on which there’s wide agreement, which is that an unacceptable level of economic inequality exists in America.  Inasmuch as Donald Trump made a major campaign promise to “rebuild our economy for working people,” he now faces the prospect of having to seriously address that condition.  Although this is one of the few areas in which Democrats may find common ground with his administration, there will obviously be substantial disagreements as to what steps should be taken to move toward the common objective of bettering the lot of the American middle class.  And further complicating  those limited areas of agreement  are the areas where the Trump campaign is, or will be, at odds with conventional views of the Republican establishment—especially the Republican Congress.  The extent to which the Trump administration will be willing to pursue objectives that differ from traditional Republican positions is mostly unknown.  For example, If one assumes the possibility of President Trump prevailing in intra-party disagreements concerning matters involving labor-relations—which is pure wishful thinking—a fundamental question arises as to whether he might actually oppose some of the extreme anti-union positions that have long been hallmarks of the Republican establishment and perhaps even initiate some reasonable actions that favor both organized labor and the economy as a whole.

At first blush such occurrences seem unlikely—if not impossible—but Trump’s public statements and his extensive labor-relations record have created an area of mystery that makes this unlikely possibility worth examining.  As we all know, Trump changes his positions readily and is full of surprises.  A potential subject for one such unlikely surprise has crossed my mind. But before examining that subject, we should first look at its likely setting and at Trump’s known record as an active participant in union-management relations, all of which can be contrasted and compared with his public statements.

Considering his professed—but not necessarily believable—anti-establishment positions, is there a possibility that he might take certain actions that would contribute to the development of a stronger labor movement?  After all, he claims not to be a doctrinal Republican.  Indeed, the Huffington Post reported during the campaign that Trump “did something unheard of for a modern Republican presidential candidate.  He made a direct appeal to union workers and claimed to be their champion.”  And at a New Hampshire town-hall meeting in February of 2016 he bragged about his relations with unions, boasting that “I have tremendous support within unions,” and “Workers love me”.  He also told Newsweek that he had a “great relationships with unions.”

What are those relationships?  Most of Trump’s contacts with organized labor related to his business activities in New York and New Jersey.   A Newsweek study reported that “labor records and interviews with labor leaders and other experts suggest that rather than being union-busters, Trump and his organization worked well with unions on a regular basis.”  Indeed, Newsweek found “plenty of evidence that Trump and labor groups have mostly played nice over the decades [and that] the Trump organization has faced comparatively few labor complaints from his home base in New York over the past nearly 18 years.”

There are reasons, however—especially current reasons—to differ with that assessment, particularly outside of New York and Atlantic City where Trump’s labor reputation in the world of business and construction has been mostly nonunion and even anti-union: for example, the recently-settled but long-lasting opposition of his Las Vegas hotel to bargaining with the Culinary Workers Union, for which he spent half-a-million dollars for professional anti-union representation, but was nevertheless found guilty by the NLRB of unlawful refusal to bargain.  Among his anti-union statements is his assertion that unions have done “a terrible job representing workers.  No wonder companies flee the country.”  And “If United Steel Workers 1999 was any good, they would have kept those jobs in Indiana.”  Furthermore, Trump has expressed strong support for “right-to-work” legislation.

Considering that he won his election with the critical votes of many union men in Michigan, Ohio, Pennsylvania, and Wisconsin, what position will he likely take toward organized labor?  Probably no one, including Trump himself, knows the precise answer to that question, or whether he will continue or worsen the GOP’s endemic negative attitude toward unions.  My own view of what he might do—which is colored by my hope as to what I think he should do—stems from his previous labor-relations experience and public statements, such as I noted above, plus my tentative consideration and appraisal of his basic nature—which seems to be the same as President Obama’s, who said “I don’t think he is ideological.  Ultimately he is pragmatic.”  That pragmatism was illustrated by his asserted justification for his tendency to use the law, whether tax laws or state labor laws, to obtain the best business deals possible, for he boasted that “I’ve used the laws of the country to my advantage just as . . . many, many others on top of the business world have.”  However, Trump has also asserted his intent to make his Presidential decisions based on what he deems best for the country, not just on what is best for Donald Trump.  I would therefore like to believe that he will apply the latter standard to matters involving labor-relations, especially since he claims to “have great relationships with unions” and has expressed his disdain for so many major policies of the Republican establishment—but in truth I will be totally surprised if that happens.  If, however, Trump should prove to be a non-ideological President who will opposes key elements of the establishment—though his announcements  of major appointments to date suggest otherwise—he should be amenable to allowing the NLRB to function according to its true statutory policy rather than treating it in the manner of his Republican predecessors, all of whom appointed critical numbers of Board Members and NLRB General Counsels who were opposed to the NLRA’s basic policy of favoring collective bargaining, a practice that contributed substantially to the Board’s failure to adequately enforce the Act

Thus, if President Trump wishes to be well-meaning with reference to the Labor Board—which I doubt—I propose that he simply fill all Membership and General Counsel vacancies on the Board with only qualified persons who have already demonstrated, or can truthfully demonstrate, that they genuinely favor the collective-bargaining policy contained in the Act and pledge to support that policy.  Such appointments would allow the Board to function as every Congress that enacted or amended the Act clearly intended, which would be an action that could yield Trump some support from unions, such as he claimed to have during the election campaign.

With two existing NLRB vacancies to be filled, the new President will have a golden opportunity to move the Board in the direction spelled out in the text of the Act, which would make it easier for employees who wish to unionize and benefit from collective bargaining to do so.  If that happens, the American labor movement will regain some of its lost authority and the resulting increase in working class wages will ultimately contribute to a healthier middle class. This will not happen, however, if Trump yields to the usual anti-union elements in the Republican Party.  Yet no one will be more surprised than I if he decides to buck those elements and appoint Board Members, and ultimately a General Counsel, who honestly favor collective bargaining.  I hope I’m wrong in my pessimism; if not, this can be a goal for a future President.