Joe Biden’s presidency has seen labor actions from Detroit to Hollywood. The next may depend on who gets to oversee labor relations after the election.
The National Labor Relations Board, which monitors unfair labor practices and mediates labor disputes, has become an aggressive union booster under Biden. While the agency’s policies tend to change depending on who is in the White House, the shift has been clear, labor experts and former NLRB employees say.
“You have to go back to the 1930s and early 1940s to see something like this,” said Michael LeRoy, a professor at the University of Illinois at Urbana-Champaign’s School of Labor and Employment Relations.
But the NLRB’s recent efforts haven’t always been successful, and emerging legal battles will affect whether its more muscular approach — whether on behalf of workers or employers — can continue under the former president. Donald Trump and Vice President Kamala Harris are vying for union votes.
“The confluence of a strongly pro-labor NLRB and a strongly anti-labor Supreme Court kind of mix together to create this atmosphere of instability,” LeRoy said.
For the workforce
“Biden has been pretty forward in his thinking that he wants to be the most pro-union president in history, and I think that’s kind of happened,” said. Joel White a lawyer who advises employers on employment matters at Fox Rothschild.
Before joining the law firm in 2022, White spent a decade in the NLRB’s regional office under the Obama, Trump and Biden administrations. The agency’s current approach, he said, represented “the biggest swing yet.”
On Biden’s first day in office, he fired then-general counsel Peter Robb months before the end of a Trump appointee’s four-year term — the first such ouster since 1950. When Robb’s successor, Jennifer Abruzzo, released a memo listing the cases and standards he might be subject to. wanted the government to review, but some saw it as a big change.
“It’s just a very, very long list of priorities,” said Rebecca Leaf, a senior trial attorney at the NLRB under the Obama and Trump administrations who now works on the employer side at Ballard Spahr. “The Trump administration had reversed too many Obama-era policies, and he wanted to go back to them,” Leaf said, “but then I think he wanted to go even further.”
White said that meant change for agencies like his. “The districts sent a lot of cases to the advisory,” he said, the division that reviews issues in D.C. to determine whether they should be used to challenge existing standards.
Last year, the NLRB overturned 50 years of precedent by requiring employers to recognize a union if most workers sign an authorization card. If the employer commits an inappropriate work practice before the vote, it must immediately start negotiations. The decision, which sharply limited employers’ ability to compete for arrangements in closed elections, is now under court challenge.
The Biden-era NLRB has also stepped up union campaigns. In October 2021, it decided that Starbucks workers in Buffalo, New York, could vote to unionize, paving the way for the coffee shop’s first union in December. That same month, an NLRB settlement with Amazon required the company to notify warehouse workers of their organizing rights and allowed them to discuss organizing outside the workplace. A few months later, Amazon’s warehouse merged.
Kate Bronfenbrenner, director of labor education research at Cornell University’s School of Industrial and Labor Relations, said such moves “give workers the confidence to organize” and spurred recent strikes by Hollywood writers and actors, the United Auto Workers and others.
White said he sees the opposite effect on leadership. “When you have an agency that is openly pro-union, it makes it harder for employers to make decisions and act on those that are legal but don’t want to be seen as illegal,” he said.
Kayla Blado, director of the NLRB’s Office of Congressional and Public Affairs, defended the agency’s record under Biden.
“The National Labor Relations Act is a law that protects the rights of workers,” he said in a statement, referring to the 1935 measure that created the agency. Abruzzo “has supported his staff in effectively implementing these protections by educating workers about their rights and employers and unions about their responsibilities, and by asking the board and courts to apply the National Labor Relations Act as Congress intended,” he said.
The pendulum swings
“They’ve continually pushed the envelope in terms of where their authority lies,” Ed Egee, who filled Blado’s role at the agency under Trump, said of the current NLRB. “That’s why they’re going to have problems in the federal courts on some of these issues.”
The government issued a rule last year that revived an Obama-era measure that made it easier to track franchisees and contractors for labor violations. A federal court overturned that this year, and the NLRB dismissed the appeal in July. In June, the Supreme Court ruled against Starbucks in a case that tightened requirements for court injunctions to protect workers from retaliation during industrial action.
The resurgent U.S. labor movement has also suffered major losses—especially in the South, where organizers face higher hurdles and union support is softer. Nationally, public support for unions is at a record high, and for the first time last year the number of organized workers reached the highest annual level since 2000. However, union membership has continued to decline as many non-union workers entered the workforce.
Celine McNicholas, like Blado and Egee, led the NLRB’s Office of Congressional and Public Affairs, serving under the Obama administration. The Biden-era agency “has undone the damage of the Trump administration in certain cases,” he said, but not as aggressively as one might think.
“They haven’t unchecked the boxes” across the board in precedent-setting cases — such as Trump-era rules that allow employers to limit employees’ use of company email to organize and discipline new unions before contract negotiations — he said. McNicholas, who is now director of policy and legal counsel at EPI Action, part of the left-wing Economic Policy Institute think tank.
As LeRoy sees it, “Biden’s NLRB is a direct response to Trump’s NLRB.”
In 2019, it overturned 70 years of precedent to give employers more leeway to enter into collective agreements for changes to unenforced rules and practices. As the Trump White House has done with many agencies, it proposed cutting the NLRB’s budget — which was flat for nearly a decade through fiscal year 2023, lagging behind inflation — but Congress refused to do so.
Trump also oversaw a decline in union election filings. “When you know you’ve got a board that’s particularly hostile to workers, the logical and reasonable thing for organizers to do is to think, ‘Well, I don’t want this issue to come before this board,'” McNicholas said.
As for what comes next
The work history of the last two administrations is under scrutiny in the 2024 race.
Teamsters President Sean O’Brien spoke at the Republican National Convention last month. Before becoming Trump’s running mate, Sen. JD Vance, R-Ohio, visited striking UAW workers last fall, weeks after Biden did the same.
Harris, on the other hand, received strong union support after stepping in to lead the Democratic ticket. And both campaigns are competing for black voters, who are more likely to be union members than any other race or ethnic group.
While some analysts expect a Harris administration to be more business-friendly than Biden’s, others predict continuity. “He’s going to get the job done,” SEIU President April Verrett said in a recent press conference.
Regardless of who wins the election, challenges remain for the NLRB. Recent Supreme Court decisions, including overturning 40 years of precedent in a ruling that cut the power of federal agencies, could weaken the NLRB.
Egee, now vice president of government relations and workforce development at the National Retail Federation, which filed an amicus brief in that case, said the outcome could bring consistency. “The constant change of the NLRB is not good for business stability,” he said.
The agency also faces challenges to its constitutionality and enforcement powers from the likes of SpaceX, Trader Joe’s and Amazon, an effort that coincides with a broader conservative push to shrink the administrative state.
Blado noted that the National Labor Relations Act was found constitutional in 1937 and has faced corporate pushback for decades.
“While current challenges require the NLRB to expend scarce resources defending against them,” he said, “we have seen that the consequences of such challenges are ultimately justice delayed, but ultimately justice prevails.”
The fate of the NLRB could be decisive for the labor movement, Bronfenbrenner said. If its influence weakens, “there will be a lot more strikes, a lot more industrial action, or the labor movement will die,” he predicted. “It either becomes more militant or just gives up.”
This article was originally published on NBCNews.com
