Viewpoint: The NLRB is Underfunded and Understaffed—And That’s a Big Threat to the Current Organizing Wave
The budget for the National Labor Relations Board for fiscal year 2022 was $274 million, which might sound like a lot of money. But it is the same amount as the Board’s budget for Trump-era fiscal years 2021 and 2020, and that is a problem.
In fact, the NLRB has not had an increase in funding since 2014, the year that the Republicans took control of Congress during the Obama administration and reignited their decades-old campaign to deep-six workers’ rights to unionize.
No increase “means a cut to the agency’s funds, due to inflation and other factors,” explains Burt Pearlstone, president of the NLRBU, the union representing workers at the agency.
The Biden administration had sought a 10 percent funding increase for the NLRB this year. But Republicans dug in to oppose an increase, claiming the cost was too high. Privately many were simply doing the bidding of their corporate backers to further weaken an agency already in trouble. When the overall budget was finally passed in March, the administration had accepted flat funding.
HOLLOWED OUT, ON PURPOSE
A goal of the Trump administration, and the Republican Party generally, has been to decimate what they refer to as the “administrative state.” During the Trump years, agency heads were appointed to hollow out federal agencies from within. At the NLRB, Trump named Peter Robb, a management lawyer famous for breaking the strike of air traffic controllers under Reagan, as General Counsel.
Robb set out to weaken the agency by overturning pro-union case law and reducing agency staff, but many of his initiatives were stymied.
Case law at the Board changes slowly. Before a General Counsel can put into place changes that he or she seeks, the right case must be filed with the agency; the case must be tried before an Administrative Law Judge (ALJ) and then the Board in Washington, D.C.
Some of Robb’s initiatives were stopped by ALJs; for others, he did not find the appropriate case. Had Trump won a second term and Robb stayed in power, the story would be quite different.
Nonetheless, Robb was able to do significant damage to the agency. During his reign, jobs were left vacant across the country. There is always a certain amount of turnover, as staff move on to other jobs; those jobs were not backfilled during Robb’s tenure. In 2018 he offered buyouts, enticing additional staff to leave, and those jobs also were not backfilled.
The NLRB even failed to spend its budget in 2018 and 2019, prompting an investigation by the Board’s Inspector General. Underspending violates the laws establishing Congress’s spending authority (as does overspending).
As the NLRB Regions lost people, the workload increased significantly for those still working at the agency. In 2021, when President Biden took office, there already was a significant backlog of trials waiting to be scheduled. Those that were scheduled took longer and longer to get before an ALJ.
A NEW SHERIFF
To his credit, Biden took the unprecedented action 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 and out. She wants to enforce the original intent of the National Labor Relations Act: to level the playing field between workers and employers, and to protect the rights of working people collectively seeking to better their lives.
Almost immediately, Abruzzo issued memos alerting the agency of cases and practices she would like to see revisited and revised. She called for reinstating the Joy Silk standard (where the Board would require an employer to recognize the union once a majority of workers had signed union authorization cards), increasing penalties on law-breaking employers, declaring mandatory anti-union meetings unlawful, and other pro-worker initiatives. The labor movement took notice.
Biden also appointed two union-side labor lawyers to fill existing vacancies on the five-person Board: Gwynne Wilcox and David Prouty. The majority of Board members are now Democratic appointees. Both 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 workers or to hinder them.
HAMSTRUNG BY UNDERSTAFFING
The new appointments to the Board and the new General Counsel are exciting news—and not a moment too soon. Union organizing is way up. Workers across the country are taking on big corporations like Starbucks, Amazon, and Trader Joe’s, as well as seeking to unionize in unexpected places—comics, gaming, tech.
Filings at the NLRB for union elections from October 2021 to March 2022 were up 57 percent compared to the same period a year earlier. In response, employer lawbreaking is increasing. Unfair labor practice charges against employers are up 14 percent for 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 work.
The Republican attack on the agency, accelerated under Robb, is being felt now. Between 2012 and 2022, the field staff at the agency was reduced by more than 40 percent.
Field staff are the lawyers and examiners who handle union elections, investigate cases, and prosecute unfair labor practices, as well as the administrative professionals who support this work. At the Brooklyn Region, which ran the elections in Staten Island at Amazon, the staff is down 40 percent since 2012.
Everything now takes longer. Delay favors the employer. Workers begin to feel that they can’t win and give up or move on.
DEATH BY DELAY
That is Amazon’s goal in Staten Island. The company filed 25 objections to the election at the JFK8 warehouse. Along with claiming objectionable behavior 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, creating the impression that Amazon violated the law affecting the vote.
Even though the Brooklyn Region received assistance from field staff at other Regions to help with the Staten Island vote, Amazon claims that the agency mishandled the election by providing insufficient staff for the election. Thus, Amazon is claiming that the underfunding of the agency is cause for overturning the vote.
Amazon’s claims of violations on the part of the Brooklyn Region also caused the hearing to be moved to the Region in Phoenix, Arizona, to avoid a conflict of interest. This, too, created delay. The hearing in Phoenix did not begin until June 13, months after the actual vote.
The objections hearing alone may take months, and then there will be many more months before the briefs are filed and a decision rendered. Other legal delaying tactics will follow.
Dragging things out is Amazon’s goal; understaffing aids that goal.
Even if the agency adds staff to resolve issues at Amazon (which it has done), fewer field staffers are available to handle the increased caseload involving workers and unions at other companies.
Workers at the Brooklyn Region feel overwhelmed by the workload. Many have begun talking about leaving. The Brooklyn chapter of the NLRBU has met with Abruzzo seeking relief.
“Brooklyn is not the only Region feeling overwhelmed by the workload,” says Pearlstone. He hears this from workers at NLRB Regions across the country. “The only solution is more money to hire more people.”
BIDEN MUST FIX THIS
President Biden claims to be pro-worker and pro-union. He has supported the PRO Act, recommended greater worker rights in the federal government, issued a pro-worker message to employees at Amazon’s Alabama warehouse, and jubilantly told Amazon “Here we come!” after the first union win in Staten Island. And he has nominated a General Counsel and new Board members that care about enforcing the National Labor Relations Act.
But without sufficient funding for the NLRB, all of Biden’s statements could end up being little more than hollow promises.
Unions and labor activists need to demand that the Biden administration find additional resources for the NLRB now. Adequate funding for the agency has got to be a major issue for the labor movement—or else the wave of new organizing that has ignited our imaginations and revived an understanding of the importance of labor may wither away.
Gay Semel is a retired union-side labor lawyer. She was District Counsel to District 1 of the Communications Workers in New York for more than 30 years. She also worked as a field attorney at Region 2 of the NLRB in Manhattan for two years. She is currently working on a book about a lengthy battle to get and keep a union at Brooklyn Cablevision.