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Grad students organizing? NLRB says yes, then no, then yes, then, if no, then yes under Biden ...
This story is part of the Prospect’s series on how the next president can make progress without new legislation. Read all of our Day One Agenda articles here.
Of all the federal departments, agencies, and boards that set rules and regulations, none is quite so subject to shifts in administration as the one that sets the rules for employer-worker relations: The National Labor Relations Board.
Consider, for instance, how the board has ruled on the question of whether graduate students employed by their private universities as teaching or research assistants are actual employees and thus can unionize. (Such students at public universities are subject to state, not federal, labor law.) Twenty years ago, during the Clinton administration, the Democratic majority on the five-member board ruled that the students were employees and therefore could organize. During the subsequent presidency of George W. Bush, the Republican majority on the board reversed that ruling, saying the students couldn’t organize. The Democratic majority then appointed by President Obama reversed the Bush ruling and reinstated the students’ employee status and right to form unions.
When Trump became president and gave the board a Republican majority again, the unions organizing grad students feared that Trump’s NLRB would guarantee yet another reversal of the past (in this case, Obama-era) ruling. So they decided not even to seek recognition under the National Labor Relations Act, avoiding an appeal from disconsolate university administrators that was sure to go against them. Instead, they either tried to persuade universities to voluntarily recognize the unions (see: cold day in hell), or persuade them to submit to third-party arbitration or election procedures, or just forego union recognition altogether, in the hope that Trump and his board members would be around for only one term.
Assuming that Biden can, eventually, get a majority on the board, what could it do?
But the NLRB has a slower way it can make policy. It can announce, even absent any cases before it, that it is considering setting or reversing a rule. It’s a time-consuming process, requiring the board to amass whatever a majority considers to be evidence or a compelling case, devise a new rule, submit it for public comment, and then take a vote. That’s exactly what the three Republicans currently on the board have done with the apparently perennial issue of grad-student unionization. The board has gone through some of the preliminary steps, but for reasons that are not currently apparent, it has thus far declined to issue a rule. And the clock is ticking on the end of the administration.
Even if it did get the rule in under the wire, that could change right away with a Biden presidency—right?
Well, perhaps. It certainly couldn’t change on Day One. By law, the board is comprised of five members with staggered five-year terms, three from the president’s party and two from the opposition, each subject to Senate confirmation. Currently, the board has three Republican members and just one Democrat.
In theory, President Biden could move to fill that one Democratic vacancy as soon as he takes office, if the Senate confirms his nominee. But the next vacancy doesn’t roll around until August 2021, when one of the three current Republican members’ term expires. Until then, the board will retain its Republican majority.
And that’s the best-case scenario. Over the past decade, Republican senators have generally opposed Democratic appointments to the board, and during Obama’s first term, using the filibuster rule, blocked them. Obama was obliged to make recess appointments, and at one point, the board’s membership dwindled to a bare two—one from each party. (To make matters worse, even when those two agreed on rulings, the Supreme Court nullified them by decreeing that two out of five didn’t constitute a quorum.)
Back in 2013, in response to a GOP blockade on NLRB and other appointments, Senate Democrats eliminated the filibuster on presidential appointees, reducing the requirement for confirmation to just 51 votes. But Democrats promptly went into the minority after the 2014 midterm elections. Any predictions about what a Biden NLRB could do, then, depends entirely on the outcome of January’s Senate run-offs in Georgia. If the Republicans retain Senate control and refuse to confirm any of Biden’s nominees, Republicans would still have a working two-to-one majority at least through 2022. Biden could make recess appointments to the board, though Mitch McConnell might then refuse to recess the Senate, at which point Biden could adjourn the Senate to make recess appointments, though the Court rejected a similar move by Obama.
It’s a whole thing.
Assuming that Biden can, eventually, get a majority on the board, what could it do? In classic NLRB fashion, it would first be obliged to reverse the cascade of rulings reducing worker rights that have flowed from Trump’s board. Those rulings include:
• Making it harder for employers to voluntarily recognize unions, by giving employees the right to instantly demand the union be decertified.
• Making it easier for employers to delay employees’ votes on unionization, giving employers more time to mount opposition campaigns (which, in the real world, often involves implicit or explicit threats to their workers).
• Making it harder for workers to unionize by denying organizers access to employees.
• Making it harder for distinct categories of workers to unionize by ruling that recognition votes have to be held among all employees, even if they have nothing in common (not job type, not location) save their employer. This ruling has been struck down by a federal district court, but it is on appeal before the D.C. Circuit Court of Appeals.
• Declaring that mega-companies employing a franchise model, like McDonalds, couldn’t be held liable for violations of legal workplace standards.
As Wilma Liebman, former chair of the NLRB under Obama, told me about Trump’s board, “If I had to summarize, they cut back on the right to organize, on unions’ access to employees, they made it easier for bosses to get out of contracts and made it harder to win collective bargaining. Every one of their many decisions went in that direction; not a single one expanded workers’ protection to engage in collective bargaining.”
So the Day One Agenda for a Biden NLRB—even if Day One doesn’t come until late in 2021 or 2022—would be to reverse those rulings. But that’s no simple task, either.
“It will take an extraordinary effort just to ratchet the law back to what it was at the end of Obama’s term, much less making it better,” Liebman says. “They could easily spend four years just getting it back.” Reversing rulings is a time-consuming process, and it will likely be hampered by the considerable reductions in NLRB staff that the Trump administration has put through. Moreover, the Republican-dominated federal bench is so hostile to unions that reversals of the Trump board may not withstand appeals to the courts. That would require a Biden NLRB to figure out how to squeeze their rulings through the eye of Sam Alito’s needle.
At least some of the initiatives taken by a Biden NLRB won’t concern undoing the handiwork of Trump’s. “I hate to think that all the NLRB can do is swing back and forth on the same six cases,” says Craig Becker, general counsel of the AFL-CIO, who was an Obama recess appointee to the board.
New cases coming before the board would likely include the question of whether workers labeled as independent contractors are in fact employees, with the right to form unions and bargain collectively. A board ruling that, say, drivers for Uber and Lyft are actually employees could reshape much of America’s new economic landscape in workers’ favor.
Another issue concerns the use of technology to surveil employees, and the legality of such surveillance if it’s used to suppress union activities or retaliate against union activists. Yet another concerns the ability of state and local governments to mandate worker-controlled health and safety committees in workplaces, something Nelson Lichtenstein called for in a Prospect article this spring, and a version of which was established in Los Angeles County by a vote of the County Board of Supervisors. While state and local works councils likely run afoul of the NLRA’s federal pre-emption of collective bargaining law, a Biden NLRB could rule that health and safety committees pass muster, since they deal with safety concerns rather than more general collective bargaining.
Any major change in rules, much less laws, will likely be contested in our union-hating courts.
As Becker points out, should Congress actually enact a version of the PRO Act, a far-reaching labor-law reform bill passed by the House earlier this year, a Biden board could implement it. Of course, this could only happen if the Senate went Democratic and scrapped its 60-vote filibuster requirement.
Even if all the above comes to pass, however, the Board is not likely going to be the final arbiter. Any major change in rules, much less laws, will likely be contested in our union-hating courts.
Beyond the NLRB members themselves, there’s one further NLRB appointment that Biden gets to make: its general counsel. Currently, that position is held by the ferociously anti-union Peter Robb, whose term concludes next November. The general counsel is a position independent of the Board, with the power both to make decisions on whether to direct staff attorneys to take on specific cases, and to pass along cases to the board that they deem more important. By the logic of the “unitary executive” ruling of the Supreme Court that now allows presidents to fire the director of the Consumer Financial Protection Bureau before their fixed terms expire, Biden might move to get rid of Robb before next November—though since his own appointee would be subject to Senate confirmation, it might have to be a recess appointment.
Finally, there’s the question of why the NLRB may be the single most partisan-oriented board in the entire federal government. The answer, of course, is that Republican elites and Democrats are 180 degrees apart on the subject of unions. I say “Republican elites” because it’s not at all clear that the Republican rank-and-file is lined up in lockstep. Both the Pew and Gallup polls have shown rising support for unions in recent years; in the most recent Gallup survey, the union approval rating stood at 65 percent, its highest in several decades. For it to be so high, a considerable number of Republicans have to think well of unions, even if they thereby part company from GOP elected officials, who fear and loathe unions’ electoral preference for Democrats, and from American employers, who comprise the most anti-union business class in any industrial or post-industrial nation.
The NLRB is inherently the arena where these interests and worldviews clash every day. No wonder Day One for a Biden NLRB can’t even happen until late next year, if then.
