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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).

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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.

Crossposted from LaborNotes