Joe Biden’s presidency has seen a flurry of labor action from Detroit to Hollywood. What happens next could depend on who gets to oversee labor relations after the election.
The National Labor Relations Board, which monitors unfair labor practices and mediates disputes between workers and managers, has become an aggressive union-busting force under Biden. While the agency’s policies typically shift depending on who’s in the White House, the change is pronounced, labor experts and former NLRB staff say.
“You have to go back to the 1930s and early 1940s to see something like this,” said Michael LeRoy, a professor at the University of Illinois Urbana-Champaign’s School of Labor and Employment Relations.
But the NLRB’s recent efforts have not always been successful, and the mounting litigation will affect whether the more muscular approach—on behalf of workers or employers—can continue, as former President Donald Trump and Vice President Kamala Harris are competing for union votes.
“The confluence of a strongly pro-labor NLRB and a strongly anti-labor Supreme Court in some ways creates this atmosphere of instability,” LeRoy said.
A pro-union movement
“Biden has been pretty open about wanting to be the most pro-union president in history, and I think that has actually happened,” he said. Joel White lawyer advising employers on employment matters at Fox Rothschild.
Before joining the law firm in 2022, White spent a decade at a regional NLRB field office under the Obama, Trump and Biden administrations. The agency’s current approach, he said, marked “the biggest turnaround yet.”
On Biden’s first day in office, he fired then-General Counsel Peter Robb, just months before the Trump appointee’s four-year term was set to expire. It was the first ouster since 1950. When Robb’s successor, Jennifer Abruzzo, issued a memo listing cases and standards she might want the council to review, some saw it as a signal of a major shift.
“It’s just a very, very long list of priorities,” said Rebecca Leaf, a senior litigator at the NLRB under the Obama and Trump administrations who now works on the employer side of labor law at Ballard Spahr. “The Trump administration had rolled back too many Obama-era policies, and they wanted to go back to that,” Leaf said, “but I think they wanted to go even further.”
White said it was a change for offices like his. “Regions were sending a lot of cases to Advice,” the division where D.C. issues are reviewed to determine whether they should be used to challenge existing standards, he said.
Last year, the NLRB overturned a 50-year precedent that required employers to recognize a union if most workers signed a union authorization card. If that employer engaged in unfair labor practices before a vote, it must begin bargaining immediately. The decision, which severely limited employers’ ability to resist organizing drives involving secret ballots, now faces a lawsuit.
The Biden-era NLRB has also given unionization a boost. In October 2021, it ruled that Starbucks workers in Buffalo, New York, could vote on unionization on a store-by-store basis, paving the way for the coffee chain’s first union to be formed in December. An NLRB settlement with Amazon that same month required the company to inform warehouse workers of their rights to organize and allow them to discuss organizing outside of work facilities. An Amazon warehouse unionized a few months later.
Kate Bronfenbrenner, director of labor education research at Cornell University’s School of Industrial and Labor Relations, said a pattern of such moves “gives workers the confidence to organize” and has buoyed recent strikes by Hollywood writers and actors, the United Auto Workers and others.
White said he saw a counterintuitive impact on management. “When you’re dealing with an agency that is openly pro-union, it makes it harder for employers to make and implement decisions that are lawful but they don’t want to be seen as illegal,” he said.
Kayla Blado, director of the NLRB’s Office of Congressional and Public Affairs, defended the agency’s performance under Biden.
“The National Labor Relations Act is a law that protects the rights of workers,” she said in a statement, referring to the 1935 measure that created the agency. Abruzzo “has supported her staff in vigorously implementing those protections by educating workers about their rights, employers and unions about their obligations, and asking the Board and the courts to apply the National Labor Relations Act as Congress intended,” she said.
Pendulum swings
“They’ve continually pushed the boundaries of their authority,” Ed Egee, who filled Blado’s role at the agency under Trump, said of the current NLRB. “That’s why they’re going to have trouble in federal courts on some of these issues.”
Last year, the board issued a rule that revived an Obama-era measure that made it easier to prosecute companies for labor violations by franchisees and contractors. A federal district court struck down the rule this year, and the NLRB dropped its appeal in July. In June, the Supreme Court ruled in Starbucks’ favor in a case that tightened the standards for issuing injunctions protecting workers from retaliation for organizing.
The U.S. labor movement’s resurgence has also suffered notable setbacks, particularly in the South, where organizers face higher barriers and union support is weaker. Nationally, public support for unions is at a record high, and the number of workers who organized for the first time last year reached its highest annual level since 2000. Yet union membership rates have continued to decline as many nonunion members enter the workforce.
Celine McNicholas, like Blado and Egee, led the NLRB’s Office of Congressional and Public Affairs, which served under the Obama administration. The Biden-era agency “has in some cases undone the damage done by the Trump council,” she said, but not as aggressively as was believed.
“They haven’t checked the boxes on all the precedent-setting issues — like the Trump-era rules that allow employers to restrict employees’ use of company email for organizing and to discipline workers in a new union before contract negotiations,” said McNicholas, who is now director of policy and general counsel at EPI Action, part of the left-leaning Economic Policy Institute think tank.
According to LeRoy, “the Biden NLRB is a direct response to the Trump NLRB.”
In 2019, 70 years of precedent was overruled to give employers more leeway to make mid-term changes to non-hard-and-fast rules and policies. As the Trump White House has done with many agencies, it proposed cutting the NLRB’s budget — which had remained flat for nearly a decade through fiscal year 2023, lagging behind inflation — but Congress balked.
Trump also oversaw a decline in union election petitions. “When you know you have a board that is particularly hostile to workers, the logical, sensible thing for organizers to do is think, ‘Well, I don’t want this question to come before this board,'” McNicholas said.
What comes next?
The labor performance of the last two governments will be scrutinized in the 2024 elections.
Teamsters President Sean O’Brien spoke at the Republican National Convention last month. Before he became Trump’s running mate, Sen. J.D. Vance, R-Ohio, visited striking UAW workers last fall, weeks after Biden did the same.
Harris, meanwhile, has drawn strong support from labor unions after topping the Democratic ticket. And both campaigns are competing for black voters, who are more likely to be union members than any other racial or ethnic group.
While some analysts expect a Harris administration to be more business-friendly than Biden’s, others predict continuity. “She will get the job done,” SEIU President April Verrett said at a recent press briefing.
Regardless of who wins the election, challenges remain for the NLRB. Recent Supreme Court decisions, including the overturning of a 40-year precedent in a decision that drastically reduced the power of federal agencies, could weaken the NLRB.
Egee, who is now vice president of government relations and workforce development at the National Retail Federation, a trade group that filed an amicus brief in that case, said the outcome could bring consistency. “The NLRB constantly changing is not good for the stability of the business,” he said.
The agency also faces challenges to its constitutionality and enforcement powers from players like SpaceX, Trader Joe’s and Amazon. These efforts come amid a broader conservative push to rein in the administrative state.
Blado noted that the National Labor Relations Act was declared constitutional in 1937 and has been opposed by the business community for decades.
“While the current challenges require the NLRB to devote scarce resources to defending against them,” she said, “we have seen that the results of these types of challenges are ultimately a delay in justice, but that ultimately justice will prevail.”
The fate of the NLRB could be crucial for the labor movement, Bronfenbrenner said. If its influence weakens, “either there will be a lot more strikes and work actions, or the labor movement will die,” she predicted. “It will either become more militant or it will just give up.”
This article was originally published on NBCNews.com
