The Revolving Door Project, a Prospect partner, scrutinizes the executive branch and presidential power. Follow them at therevolvingdoorproject.org.

Last year, the number of workers covered by a union contract rose to 16.5 million, the highest raw total since 2009. In theory, this increased representation should mean the National Labor Relations Board—the federal agency that protects the right of private-sector employees to organize, and adjudicates alleged unfair labor practices (ULPs)—will be awfully busy. For an agency that has long suffered from a workforce and inflation-adjusted budget decline, the growth of the organized workforce should coincide with agency leadership pushing for more capacity and resources to alleviate its backlog and manage new cases in a timely fashion.

The logo of the Revolving Door Project: a revolving door

This, however, is antithetical to the Trump administration’s bilious anti-worker animus—witness the desire to put federal workers “in trauma”—as well as its general hostility to the federal administrative state. So, rather than taking steps to handle its current caseload, NLRB General Counsel Crystal Carey is taking a different tack: choking off the number of cases that reach the agency by increasing the burden of filing complaints in the first place. As a result, employers who violate labor law are getting off scot-free.

Even before Carey started this, the NLRB was in a severe capacity crisis. The agency, which was founded with the explicit intent to be stronger in protecting worker rights and more encouraging of good-faith bargaining compared to its predecessor, was an early target of the administration’s attacks on independent agencies. The Board had been without a quorum for the majority of last year following President Trump’s unprecedented firing of Democratic board member Gwynne Wilcox, preventing the agency from issuing rulings until two Trump appointees were confirmed in December. (By statute, the NLRB requires three of its five board slots to be filled to make binding rulings.) As a result, cases piled up, peaking at 591 in January 2026—and that’s just the ones awaiting a final decision from the Board. The agency also has 17,000 open ULP investigations, more than half of which are over six months old, according to acting Associate General Counsel William Cowen.

Read more from the Revolving Door Project

The agency is ill-equipped to handle such a backlog, let alone the influx of cases that will likely accompany more than 460,000 additional union-represented workers. The administration has not shown any intention to change that. Last year, with full knowledge of the backlog they faced, the NLRB requested funding for just 1,152 full-time employees for fiscal year 2026 (FY26). This is nearly a hundred fewer employees than the prior year and 500 fewer than requested a decade ago for FY16, despite a higher combined intake of ULP and representation cases. To make matters worse, since Trump’s inauguration the agency had lost 196 employees, counterbalanced by only seven hires, according to the latest data from the Office of Personnel Management in January.

Funding levels tell a similar story. Trump’s NLRB requested $285 million for FY26, down $14 million from FY25. This is a significant decrease from the FY16 budget in real terms, which would be over $381 million in today’s dollars.

With such a drop in both staff and funding over the last decade, it’s no wonder the agency cannot keep up with its workload. Trump’s chosen leadership is not oblivious to the issue, but they aren’t looking to solve it in a way that actually prioritizes the well-being of workers.

Last December, then-acting General Counsel William Cowen issued new guidance to reduce the number of cases that receive an investigation from the agency. Under Cowen’s guidance, when a party files a charge for an unfair labor practice, they must now provide a mountain of evidence to justify the filing. Within two weeks of filing, the party must provide a chronological timeline of events including names and titles of those involved, documentation including texts, emails, and phone records to support the allegation, and a list of witnesses along with their contact information and a summary of their testimony. Failing to provide this information could result in “dismissal of the charge for lack of cooperation.”

These reams of evidence are the type of thing that an agency investigation would previously have helped discover; requiring them from the jump shifts a large burden from the NLRB to workers, who now have another job to do on top of the one they’re already having problems with. It arguably violates Sections 10(b) and (c) of the National Labor Relations Act, which directs the Board, not the accuser, to take and record the testimony and arguments to determine whether charges in a complaint are well-founded. The Board has the power to serve a complaint and collect testimony “whenever it is charged that any person has engaged in or is engaging in any such unfair labor practice.”

Even when the charging party manages to gather and file this information in a timely manner, regional offices can examine these initial filings and still dismiss the case. If the charging party passes that hurdle, the case will be placed on an unassigned case list “until there is a Board Agent with capacity” to investigate. Given the severe understaffing, that could be a while.

It’s easy to imagine how this new guidance will lead to countless instances of unfair labor practices—the vast majority of which are filed by employees and unions—going uninvestigated. Smaller unions or those without experienced staff and elected leadership may not have the capacity or expertise to conduct witness interviews that satisfy the NLRB’s initial review. Employees may be fearful of speaking up without knowing the NLRB will be investigating; even though retaliation is unlawful, without the legal authority of the Board backing them up, speaking out can feel like more of a risk than is worth taking on.

While the most egregious ULPs include improper termination and retaliatory disciplinary actions, they can also range from overt written warnings to subtle verbal threats, meaning that physical documentation of ULPs may take longer than two weeks to collect, may be in the employer’s possession, or might not exist at all.

Agency leadership knows they lack adequate staff levels to do their job, but they would rather manipulate the rules than ask for more employees.

That’s exactly the point of the new guidance—the administration explicitly wants to investigate fewer ULPs each year. Cowen said as much in his memo, stating that the change will provide “much needed relief” in response to the “backlog of cases and decreasing staff levels.” In other words, agency leadership knows they lack the adequate staff levels to do their job, but they would rather manipulate the rules than ask for more employees. Changing the burden of proof for a ULP doesn’t decrease the number of times a worker gets screwed over by their employer—it just sweeps a higher percentage of them under the rug.

NLRB General Counsel Crystal Carey, who was sworn in to replace Cowen in January, will be continuing this posture. Carey comes to the agency from the management-side law firm Morgan, Lewis & Bockius, which has recently represented Trader Joe’s and SpaceX before the NLRB and asserted that the agency itself is unconstitutional. Carey, for her part, has represented union-busters like Amazon, Activision Blizzard, and Dollar General, according to her financial disclosure. Given her past (and likely future) clients, it’s no wonder she would want to reduce the number of investigations into employers who violate labor law.

Carey recently affirmed Cowen’s memo and issued further employer-friendly guidance. In a late-February memo providing case-handling guidance, Carey issued directives regarding ULP allegations that a workplace maintains “potentially unlawful rules,” such as putting up a sign that says discussing unions at work is forbidden. The guidance tells NLRB investigators to withdraw or dismiss charges that are based solely on such rules, so long as an employer agrees to modify or rescind the rules, claiming that pursuing cases further is “not an efficient use” of resources. The agency will seemingly not be pursuing enhanced remedies—posting of notices of rights or apologies—in these instances.

This new guidance, again issued with the explicit intention of reducing the agency’s workload, virtually invites employers to adopt unlawful rules in the workplace. The memo cites “outright bans on discussing wages among employees” as an example of an unlawful rule. If an employer decides to issue such a rule to its employees, the worst-case scenario from the company’s perspective is that a worker files a ULP charge and they have to rescind the rule. They won’t even have to say sorry about it, either.

The much likelier scenario, however, is that workers are unaware that the rule is illegal or are scared to speak up. In this case, the workers are successfully dissuaded from discussing wages and eventually working together to improve their material conditions. It’s a win-win for employers who don’t mind breaking the rules. By removing what little teeth the NLRB had to disincentivize lawbreaking—the agency generally cannot issue punitive fines—Carey is signaling to employers that they can institute these rules with virtual impunity.

The Trump administration likes to claim it is a friend to working-class Americans, but when it comes to beefing up the federal agency mandated to protect the right of workers to advocate for themselves or join a union—the surest way for a worker to improve their pay and conditions—the administration has all but abandoned its duty. Instead, under General Counsel Carey’s guidance, employers can rest easy knowing that their unfair labor practice will most likely never reach the desk of a Board investigator. Even if it does, they’re more likely to walk away with a handshake than a slap on the wrist.

Read more

KJ Boyle is a senior researcher at the Revolving Door Project focusing on labor, antitrust, and climate policy.