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A coalition of union-side labor lawyers and organizers has initiated a pressure campaign against the National Labor Relations Board (NLRB), over what they say is an unacceptably slow pace of issuing decisions on cases affecting millions of workers.
Despite there being a Democratic majority on the board for over a year, several major cases that would be likely to reverse previous anti-union rulings have yet to be released, despite being fully briefed. Even some smaller cases aren’t moving quickly, former staff told the Prospect.
The coalition blames the leadership on the board for indulging Republican members who have dragged out the process, along with excessive wordsmithing from Democratic members that has prevented rapid consensus.
“The problems that will be created as a result of this delay are huge in light of where things are at present,” said Mark Gaston Pearce, the former chair of the NLRB during Barack Obama’s administration, now a visiting professor and executive director of the Workers’ Rights Institute at Georgetown University Law Center. “If a worker is out on the job and waiting around because the board is waiting for the right case, or there’s internal posturing on how to proceed, that’s detrimental.” (Pearce is not part of the coalition effort.)
The pressure campaign is beginning with a Twitter feed, @WagnersGhost, named after Robert Wagner, the New Deal–era New York senator who authored the law that established the NLRB in 1935. The feed will highlight critical cases where there has yet to be a ruling and urge the board to act precipitously. Other efforts have been planned by the coalition as well.
The escalation is surprising, considering that Biden’s NLRB has been seen as something of a bright spot in the executive branch. Board general counsel Jennifer Abruzzo has been hailed for her hard-charging efforts on behalf of workers, and the board has taken steps to sue companies like Amazon for illegal conduct.
But the coalition sees the everyday work of issuing rulings as so important, affecting workplaces across the country, that they could no longer be silent about the delays.
In a statement, NLRB chair Lauren McFerran told the Prospect that “the Board strives to act as quickly as possible,” and that “despite resource constraints, under the current majority the Board has significantly improved our case processing time, particularly prioritizing rapid consideration of election challenges.” Election petitions at the NLRB have gone up 53 percent, per the board’s calculations.
McFerran also highlighted two rulemakings that the Board is engaged in, though by the nature of administrative procedure those take an extended amount of time. She added that “The Board is acting with care in order to ensure that public input is appropriately considered and that we are producing well-reasoned decisions that stand up to any future judicial review.”
John Ring, a Republican on the board, sees his term end on December 16. Traditionally, a flurry of board rulings occur in the aftermath of a board member leaving, and there is an expectation that this will happen after Ring’s departure. But the coalition argues that this is indicative of the problem: Ring held out on writing dissents and delayed cases, and little was done to stop him, they say.
The escalation is surprising, considering that Biden’s NLRB has been seen as something of a bright spot in the executive branch.
“The fact that we are about to get a small burst of decisions is just more evidence that the chair got played by the Republicans,” said a labor lawyer involved with the campaign, who practices before the board and therefore asked to remain anonymous. “She let them drag things out until literally the last possible moment.”
THE NLRB IS ESSENTIALLY THE SUPREME COURT of labor law. Unlike the U.S. Supreme Court, this one has a Democratic majority. By statute, the president’s party gets three out of the five board seats. The case decisions the NLRB makes govern all sorts of issues for workers and employers, including how union elections are conducted, what standards employers must hold up in the workplace, and whether grievances from workers constitute unfair labor practices.
The recent energy around labor actions at workplaces like Starbucks and Amazon has captured attention on the left, but the NLRB effectively sets the terms by which those actions are conducted. “It’s hard for people to appreciate their significance if they don’t spend all of their time thinking about labor law,” said Charlotte Garden, professor at the University of Minnesota Law School. “But working conditions during the pandemic brought home to a lot of workers, including workers that don’t think of themselves as part of the working class, that employers have unanswerable power to set conditions.”
Because of the NLRB’s power to set precedent with its rulings, over the years labor law has pinged back and forth, depending on what party takes over the White House. In the aftermath of a takeover in power, a new regime comes into the NLRB, and cases are teed up to change the precedents that the previous regime put into place. That makes the first year of rulings after a new majority supremely important.
Delays at the NLRB spring from many factors, according to experts and former staff. Increased technological capabilities like shared documents on computers enable board members to tinker with cases endlessly. The pandemic has led to remote work, which makes it more difficult to have staffers get in a room together and resolve issues with cases. Staffers in charge of cases write bench memos that are wonderfully comprehensive, with everything board members need to decide the case. But they take forever to complete, and sometimes amount to overkill.
Plus, as the NLRB has explained, the board has received the same congressional appropriation for nine years in a row, an inflation-adjusted 25 percent decrease in its budget since 2014, with a 39 percent decrease in agency staffing levels since 2002.
But those trends were all present a few years ago, when Donald Trump installed his majority on the board. The Trump board was very results-oriented and successful in moving to imprint conservative, anti-union ideology on labor law. “The Trump board moved super-fast on everything,” said the practicing labor lawyer and coalition member. A year out from the Trump NLRB majority, they said, “at least five major decisions were released that made things really hard for workers and unions.” By contrast, the labor lawyer asserted that the Biden board has completed only one major case, which allows workers to wear pro-union clothing on the job.
Biden’s majority took over on August 28, 2021, after David Prouty, former general counsel of the Service Employees International Union’s powerful 32BJ local and the Major League Baseball Players Association, took his seat, joining Gwynne Wilcox (another former union lawyer) and McFerran (previously chief labor counsel to liberal Sens. Tom Harkin of Iowa and Ted Kennedy of Massachusetts).
An article in Bloomberg Law from just before Prouty was seated captured the expectations for the new majority. “The business community should buckle their seat belts,” said one Republican former general counsel. “You have the potential for a tsunami of change,” said an employment-side labor lawyer.
But that hasn’t materialized. “I’m surprised that there haven’t been more decisions issued in cases where the board is considering overruling decisions by the Trump board,” said Garden. “Several of those have been pending for about a year without decisions.” She said that often under the Obama board, major decisions would take as little as a couple of months after the briefing was complete.
Sources aware of deliberations at the board level said the problem was twofold. First, McFerran hasn’t been putting pressure on Republicans like Ring and his colleague Marvin Kaplan to finish cases, including their dissents. “She’s putting collegiality far above anything,” said the labor lawyer participating in the coalition.
Second, Democratic members—Prouty in particular—have been “stuck in the weeds,” researching cases and tweaking the language. Often, Democratic appointees agree on the broad goals of a decision but not the approach or the particulars, including what they may think will protect the decision from a reversal on appeal (which could go all the way up to the Supreme Court). If each member holds to their positions, without the chair forcing the issue, cases can linger.
The NLRB has received the same congressional appropriation for nine years in a row, an inflation-adjusted 25 percent decrease in its budget since 2014.
The coalition argues that reversing Trump cases should be well understood at this point, especially with the urgency of getting workers back on the job. “No one here needs to be Shakespeare to get the work done,” the labor lawyer said.
Joey DeFrancesco, a long-standing labor activist and an organizer with the Demand Progress Education Fund, told the Prospect, “We’re used to seeing Republicans act swiftly to assert their will when they gain control over agencies. But Democrats often drag their feet, leaving relevant constituencies vulnerable and making any new rules more susceptible to eventual reversal. It doesn’t need to be this way, and it’s past time for the NLRB to get moving.”
THE NEW BOARD STARTED PUSHING OUT RULINGS in September 2021. Since then, it has issued 155 rulings, with 17 in fiscal year 2023, which began October 1. By contrast, a former staffer who worked at the board in the 1980s said the agency would at that time routinely issue 300 rulings per month. While there are far fewer cases now as union density has fallen, the former staffer chalked it up to changes in how board members approach cases.
“The way the board is efficient is if the board members’ engagement is minimized,” said the former staffer. “Bless a result, leave it to staff to write it, that’s how cases get out. If what you do is don’t sign off, but rewrite and fiddle with it, every time one person does that, you gotta go back around the mulberry bush past 15 other people.” The staffer despaired that even the smaller cases are not being moved forward rapidly. “That’s inexcusable,” they said. “People whose lives are hanging in the balance, and you’re sitting on it to write 45 personal footnotes.”
The board has reported that the time between assignment of a case and a decision reduced by 14 percent in fiscal year 2022 relative to 2021, though they acknowledged that at the end of FY2022, there were 28 percent more cases awaiting resolution. Fiscal year 2021, much of which featured no Biden majority on the board, might not be the ideal comparison.
Cases that have been briefed and discussed and are just waiting for a board ruling include Stericycle, a case involving employer work rules, like a rule not to talk about salaries with colleagues. Though that seems like a neutral request, it could interfere with the right to organize and therefore violate labor law.
The Trump board, in a case called Boeing, instituted a complex test that included exemptions to labor law violations if “legitimate justifications” are found. Stericycle would reverse that ruling and could go back to a previous standard instituted in 2004. The board invited briefs in the case in January and received them by March, but no ruling has been issued.
Another case awaiting a ruling would reverse a Trump board case called Preferred Building Services, which ruled that janitors in San Francisco illegally picketed their place of business because it wasn’t the office of the subcontractor they technically work for. In addition, there are cases involving independent contractors, appropriate bargaining units, and confidentiality clauses in arbitration agreements, Garden said.
Pearce, the former board chair, said that the chair had limited but real tools to get their colleagues to wrap up their input on cases. “The chair is convener and manager but not necessarily the boss,” he said. “Some chairs have said, ‘I’m going to exercise every ability I have within my province as chair to make certain things happen, including challenging a board member on how the response to a particular case is still not done yet. And perhaps given that, I might exercise my authority to not grant the expenditure of funds toward speaking engagements until all of the work gets done.’”
Other staffers said the board could make progress by simply withdrawing anti-union rules that the Trump board issued, which were immediately the subject of litigation. Withdrawing the rules would settle the cases.
There’s a lot of urgency to get cases out. With Rep. Virginia Foxx (R-NC) becoming chair of the House Education and Labor Committee—someone who is hostile to the NLRB—oversight hearings and efforts to limit the board’s authority are sure to ensue. And once the NLRB issues rulings, they have to enforce violations and survive appeals. As Pearce said, “Clarity is still distant on the horizon.”
