Trump Can’t Fight Big Labor Alone. States Must Also Help

P resident-elect Donald Trump is planning a new course for federal policy — regarding everything from foreign conflicts to environmental regulations — and he’s quickly forming his cabinet to reverse the unpopular direction taken by President Joe Biden and his administration.

But what about labor policy? The National Labor Relations Board (NLRB) is responsible for guidance on labor issues, and Trump will soon decide whom to place behind the steering wheel of this agency. With all due respect to the Department of Labor, the president’s future NLRB appointees will hold far greater power over the future of private workplaces. That Trump’s pick for Department of Labor secretary appears to be a dud only underscores the importance of dismantling Biden’s NLRB.

When he took office, Biden swiftly changed federal labor policy in favor of some of his biggest supporters, even violating long-standing norms by abruptly firing the NLRB’s general counsel, Peter Robb, in the middle of Robb’s term. Under Biden, the NRLB made it easier for union officials to capture new workplaces, deprived employees of the right to vote for or against unionization in many organizing efforts, and expanded the range of penalties for employers who oppose union campaigns. Since Trump’s November win, the NLRB ruled that employers can’t speak to employees about how unionization might affect their day-to-day work.

Biden’s overhaul of labor policy didn’t start or end there. After assuming office, he fired all ten members of the Federal Service Impasses Panel. (Full disclosure: I was one of them.) He also ordered agency heads to renegotiate contracts with federal employees. He reinstituted some of former president Barack Obama’s policies that allowed union officials to abuse government resources and perform union work while still getting paid as federal employees. He and Vice President Kamala Harris also helped union recruiters boost their membership.

So, what can Trump do to undo Biden’s disastrous labor policies? First, he could replace the NLRB’s leadership. Two of the current members, including the chairman, have not been confirmed by the Senate, and a vacancy exists. Ideally, Trump would nominate three new people and, just as Biden did, replace the general counsel mid term.

Within a year, Trump could have a very different NLRB, and yet there are significant limits to what a president can do regarding Big Labor. The bulk of union organizing, fundraising, and political activity occurs on the state or local level, where unions represent millions of teachers, state bureaucrats, social service employees, cops, and firefighters. The largest union in America, the National Education Association, is a teachers’ union with 2.5 million active members — more than the Teamsters, the International Brotherhood of Electrical Workers, and United Auto Workers combined. State, not federal, law oversees and regulates teachers’ and other public sector unions, despite their power and size, so they will be mostly outside the jurisdiction of the incoming Trump administration.

This is good news for believers in federalism. The federal government can’t infringe on states every four years and monkey with their labor policies. This means, of course, that state legislators and policy-makers, especially those concerned with union officials’ power and political involvement, must assume the lion’s share of the responsibility of addressing the problems of public sector unionism.

And they better get to it before it’s too late.

Fortunately, over the last two years, many state legislatures have responded to this call. For example, Florida strengthened its union recertification requirements, allowing more public employees to vote periodically on whether their union continues to represent them effectively. Many other states have refused to take union dues out of employees’ paychecks.

True, Trump’s second administration can resume the work of appointing judges faithful to constitutional protections, offering a lifeline to public employees in union-dominated states. Over the past 20 years, originalist judges — including those on the Supreme Court — have helped public employees reclaim this territory. In 2018, Trump’s first pick, Justice Neil Gorsuch, tipped the scales 5–4 for public employees in Janus v. AFSCME, ending public sector unions’ ability to force dues and fees from nonmembers. But state legislators shouldn’t wait for another Supreme Court decision to rescue workers from overreaching public sector union officials.

Given the resounding election results, state legislators should ride on the coattails of Trump’s national mandate by protecting public sector workers and mitigating the power and influence of public sector unions in their own backyard.