Trump on NLRB on a collision course

Just below the surface as cabinet hearings come to a close, President-elect Donald Trump will make new appointments with major ramifications for federal labor policy, i.e. the National Labor Relations Board, the arbiter of many labor-management disputes. Trump will be able to select two members immediately and, like the cabinet, they will be subject to Senate confirmation. Since so many Trump businesses are likely to come before the NLRB (a prominent Las Vegas casino dispute was recently settled), the new appointees will be called upon to recuse themselves more frequently than their predecessors.

Given the fact that there are two vacancies on the board, and one of the three incumbent members is a Republican, Trump's appointments will give the board a majority from that party and a different approach to a wide variety of issues such as procedures which expedite NLRB representation elections (the House Republicans actually voted to delay them); NLRB jurisdiction over university graduate student assistants, as well as adjunct professors; the right of employees to communicate with one another by email when organizing a union; the right to criticize the employer about allegedly bad working conditions through social media; and the question of whether fast food franchises like McDonalds and the incoming Secretary of Labor Andy Puzder's Carl's Jr. are legally responsible as a joint employer for the conduct of franchisees throughout the country.

The key NLRB position of general counsel - he or she is the gatekeeper of most cases that come before the board, is representative of the board in the courts and the prosecutor of alleged unfair labor practices in the field - will not come open until November. But there is the prospect for big changes. The appellate courts will soon be questioning the incumbent general counsel about policy cases pending at that level and a Republican dominated majority will instruct him to retrieve the low hanging fruit, like the joint employer cases now pending at the appellate level.

In one sense this is not a new development. The framers of the National Labor Relations Act 81 years ago anticipated that new presidents could appoint new NLRB members and a general counsel possessing the new administration labor policy philosophy, given the enactment of broad and sometimes ambiguous language in the NLRA and limited terms of office for all appointees.

The first illustration of ideologically based precedent reversals took place in 1953 when President Dwight D. Eisenhower appointed new conservative members and a chairman who had been a leading management labor lawyer. The board promptly reversed field on a variety of issues like the ability of employers to speak out against union organizational campaigns, to employ so-called "captive audiences" without giving the union a right to reply to anti-union propaganda, the right of employers to interrogate workers and an attempt to move labor regulation back to the states rather than the federal government.

President John J. Kennedy appointed a majority of Democrats who shifted ground on policy issues like union organizational picketing and the employer rights to contract out bargaining unit work without bargaining with the union.

In this Eisenhower-Kennedy period, there emerged a tradition (not compelled by law) that though a majority of members would come from the president's party, two of the five board member's appointments would be made to associates of the party out of power.

Presidents Lyndon Johnson and Richard Nixon followed suit, though the latter began to appoint a number of management labor lawyers (President Harry Truman had appointed one before Eisenhower)- a union lawyer was not appointed until President Bill Clinton was in the White House in the 1990s. Though the president and the Senate have adhered to this general framework through the present date, since the late 1970s, as the Carter administration was coming to an end, big changes have taken place which are attributable to political party and labor-management polarization which did not exist to the same extent in the first 40 years of the NLRA.

For the past 3.5 decades, the social contract between labor and management eroded and union membership plummeted precipitously. With near simultaneity came the advent of more aggressive anti-union employer practices including delaying tactics before the NLRB and the permanent replacement of strikers.

Fewer Republicans remained committed to the act's promise to promote both freedom of association and the collective bargaining process as representatives like Sen. Clifford Case of New Jersey and Sen. Jacob Javits of New York were replaced by more strident voices. During my chairmanship, Sen. Mark Hatfield of Oregon was a champion of the NLRB but no one on his side of the aisle, save possibly Sen. Susan Collins of Maine, projects a similar posture today.

The Reagan era of the 1980s saw pitched battles over the president's nominee of a chairman regarded as anti-union and he was not confirmed by the Senate because of ALF-CIO opposition. Illustrating the adage that one must be careful about what one wishes for, he was replaced by another chairman who in retrospect proved to be so divisive that organized labor advocated a boycott of the board altogether.

When Clinton nominated me in 1993, Sen. Nancy Kassenbaum, the leading Republican on the Senate Labor Committee, turned aside White House entreaties to confirm my nomination and threatened a filibuster. This in turn produced the first so-called "batching" of NLRB nominees, i.e., the nomination of a package of those who would be acceptable to Republicans as well as Democrats.

Now in 2017, continued adherence to this practice has made many think of it as a tradition even though prior to 1994 the "batching" process had only been employed in one instance - when the board was enlarged in 1947 from three to five members. The corollary to "batching" meant not only consultation with but also acceptance of recommendations by leading senators from the opposite political party - a practice first adhered to by Clinton and then followed by the younger Bush and Obama. This has hardened the battle lines, interjected politics more directly into adjudication, made votes on both sides more predictable and has been harmful to the independence that an administrative agency must possess.

At this point, while one can anticipate that the new board will swing more profoundly to the right, it is difficult to predict what Trump will do in his dealings with Democratic senators. One thing is for sure given the conservative cast of his new cabinet, particularly Secretary of Labor-designee Andy Puzder - board appointments are likely to be a political lightning rod for both the White House and the Senate.