This story originally appeared in Labor Notes on July 6, 2022. It is shared here with permission.
The National Labor Relations Board’s budget for fiscal year 2022 was $274 million, which may seem like a lot of money. But that’s the same amount as the Council’s budget for the Trump-era 2021 and 2020 fiscal years, and that’s a problem.
In fact, the NLRB hasn’t seen a funding increase since 2014, the year Republicans took control of Congress under the Obama administration and revived their decades-old campaign to defend workers’ rights. to unionize.
No increase “means a reduction in agency funds, due to inflation and other factors,” said Burt Pearlstone, president of the NLRBU, the union representing agency workers.
The Biden administration had requested a 10% funding increase for the NLRB this year. But Republicans dug in to oppose a hike, saying the cost was too high. Privately, many were simply bidding on their backers to further weaken an already struggling agency. When the overall budget was finally adopted in March, the administration had agreed to lump sum funding.
Dug, on purpose
One of the goals of the Trump administration, and the Republican Party in general, has been to decimate what they call the “administrative state.” During the Trump years, agency heads were appointed to oust federal agencies from within. At the NLRB, Trump appointed Peter Robb, a management lawyer famous for breaking the air traffic controllers’ strike under Reagan, as general counsel.
Robb set out to weaken the agency by overturning pro-union jurisprudence and cutting agency staff, but many of his initiatives were blocked.
The Commission’s case law evolves slowly. Before a General Counsel can implement the changes they want, the appropriate filing must be filed with the agency; the case is to be tried before an Administrative Law Judge (ALJ) and then before the Commission in Washington, DC.
Some of Robb’s initiatives were stopped by the ALJs; for others, he did not find the appropriate case. If Trump had won a second term and Robb had remained in office, the story would be very different.
Nevertheless, Robb was able to cause significant damage to the agency. During his reign, jobs remained vacant throughout the country. There is always some turnover as staff move on to other jobs; these jobs were not filled during Robb’s tenure. In 2018, he offered takeovers, enticing additional staff to leave, and those jobs also went unfilled.
The NLRB didn’t even spend its budget in 2018 and 2019, prompting an investigation by the Board’s Inspector General. Underspending violates laws establishing congressional spending power (as does overspending).
As NLRB regions lost staff, the workload increased dramatically for those still working at the agency. In 2021, when President Biden took office, there was already a large backlog of trials awaiting scheduling. Those who were scheduled took longer and longer to arrive in front of an ALJ.
A new sheriff
To his credit, Biden took the unprecedented step of firing Robb on his first day in office. Shortly after, he appointed Jennifer Abruzzo as the agency’s general counsel.
Abruzzo had worked at the NLRB in various capacities, including as assistant general counsel, for 23 years. When Trump appointees took over the agency, she left and went to work for the Communications Workers (CWA).
Abruzzo knows the agency inside out. She wants to uphold the original intent of the National Labor Relations Act: to level the playing field between workers and employers and to protect the rights of workers who collectively seek to improve their lives.
Almost immediately, Abruzzo issued memos alerting the agency to cases and practices it would like to see revisited and revised. She called for the restoration of the Joy Silk standard (where the Commission would require an employer to recognize the union once a majority of workers have signed union authorization cards), increasing penalties for employers who break the law, outlawing mandatory anti-union meetings and d other pro-worker initiatives. The labor movement has taken notice.
Biden has also named two union-side labor attorneys to fill vacancies on the five-person board: Gwynne Wilcox and David Prouty. The majority of board members are now appointed by Democrats. Wilcox and Prouty have fought in the trenches for years on behalf of workers and unions and understand how NLRB case law and procedures can be used to help or hinder workers.
Paralyzed by understaffing
The new board appointments and new chief legal officer is exciting news, and it’s not too soon. Union organizing is booming. Across the country, workers are taking on big corporations like Starbucks, Amazon and Trader Joe’s, and looking to unionize in unexpected places – comics, games, tech.
NLRB filings for union elections from October 2021 to March 2022 were up 57% from the same period a year earlier. In response, violations of the law by employers are increasing. Unfair labor practice charges against employers increased 14% over the same period.
All the pieces are in place for positive developments at the NLRB, except for one thing: there are fewer people to do the job.
The Republican attack on the agency, accelerated under Robb, is being felt now. Between 2012 and 2022, the agency’s field staff has been reduced by more than 40%.
Field staff are the lawyers and examiners who manage union elections, investigate cases and prosecute unfair labor practices, as well as the administrative professionals who support this work. In the Brooklyn area, which hosted the Staten Island election at Amazon, staff has shrunk 40% since 2012.
Everything now takes longer. The delay favors the employer. Workers begin to feel they cannot win and either give up or move on.
Death by delay
That’s Amazon’s goal in Staten Island. The company filed 25 objections to the election at the JFK8 warehouse. In addition to claiming misconduct by the Amazon Labor Union, Amazon alleges that the Brooklyn Region of the NLRB delayed the investigation of unfair labor practice charges, instead of dismissing them, giving the impression that Amazon violated the law affecting the vote.
Even though the Brooklyn area received help from field staff from other areas to help with the Staten Island vote, Amazon says the agency mishandled the election by providing insufficient staff for the election. Thus, Amazon claims that the agency’s underfunding is cause for the vote to be overturned.
Amazon’s allegations of violations by the Brooklyn area also prompted the hearing to be moved to the Phoenix, Arizona area to avoid a conflict of interest. This also created a delay. The hearing in Phoenix did not begin until June 13, months after the actual vote.
Hearing objections alone can take months, and then it will be many more months before briefs are filed and a decision is rendered. Other legal delaying tactics will follow.
Making things slide is Amazon’s goal; the lack of personnel contributes to this objective.
Even as the agency adds staff to troubleshoot issues at Amazon (which it did), fewer field staff are available to handle the increased workload involving workers and unions from other companies. .
Brooklyn-area workers feel overwhelmed by the workload. Many have started talking about leaving. The Brooklyn chapter of the NLRBU met with Abruzzo to seek redress.
“Brooklyn isn’t the only area feeling overwhelmed by the workload,” says Pearlstone. He hears this from workers in NLRB regions across the country. “The only solution is more money to hire more people.”
Biden needs to fix this problem
President Biden claims to be pro-worker and pro-union. He backed the PRO law, recommended increased rights for workers in the federal government, sent a pro-worker message to Amazon warehouse workers in Alabama, and gleefully told Amazon “Here we come!” after the first union victory in Staten Island. And he appointed a general counsel and new board members who care about enforcing national labor relations law.
But without sufficient funding for the NLRB, all of Biden’s statements could end up being little more than empty promises.
Unions and labor activists must demand that the Biden administration now find additional resources for the NLRB. Adequate funding for the agency must be a major issue for the labor movement, otherwise the wave of new organizations that has fired our imaginations and rekindled an understanding of the importance of work may peter out.