NLRB Board Demands Refunding to Meet the Rise in Unionization

Almost 250 Starbucks stores across the country have filed paperwork to hold an election to determine whether Starbucks workers want a union. Over 5,000 workers at an Amazon fulfillment center in Staten Island voted last month to decide the same. Every single one of these potential unions must follow a legal process: file a petition, draft an election agreement with the employer, hold a formal election, count votes. Up until election day, workers face a steady stream of anti-union activity, including mandatory “captive audience” meetings where employers can lobby against unionization. And successful elections are only the first step. After workers vote in favor of a union, employers can file objections, which must be processed.

Laws are only as strong as their enforcement, and the federal agency that protects the rights of private sector employees is weaker than ever. The National Labor Relations Board (NLRB) is an independent federal agency that enforces the National Labor Relations Act (NLRA), the national labor law that upholds collective bargaining and organizing rights for the hundreds of millions of workers in the private sector.

A report released by the NLRB this April details the fiscal constraints on the independent federal agency. The report details, not only a dramatic decrease in funding over the past two decades, but how insufficient the agency’s resources are relative to the current increase in organizing activity. After decades of defunding, the board is demanding financial support on par with the rising number of workers seeking legal support for unionization. As unionizing energy spreads and Democrats turn to unions for support in the midterm elections, enhancing NLRB funding is one key path to transforming the political climate through pro-labor policy.

The Board, Then and Now

The NLRA was enacted in 1935, during the Great Depression, as a legal mechanism for workers to communicate about workplace concerns, both with one another and with their bosses. The NLRB was created to administer this foundational legal apparatus for worker protections. Its statutory mission is to protect the rights of private sector employees to come together to improve wages, benefits, and working conditions. It is also responsible for investigating unfair labor practice charges and holds hearings to arbitrate workplace disputes. Anytime an employer violates collective bargaining rights, the labor board is the court within which consequences are determined and enforced.

Since then, labor law has gone through many iterations, including many that severely restrict union power. The 1947 Taft-Hartley Act, for example, amended the NLRA by prohibiting unions from using some of their most effective weapons, including solidarity strikes (walking off the job in support of other striking unions), secondary boycotts (calling for boycotts of companies that do business with a company engaged in a labor dispute), and closed shops (an agreement that employees will require membership as a condition of employment). After the Taft-Hartley Act, union victories began to decline. Although there have been several attempts to enact partial reforms since these early days of anti-labor legislation, administrations have rarely forwarded bills that comprehensively protect organizing, bargaining, striking, and more.

A lot can change in a year, however. Since last October, union representation petitions filed with the National Labor Relations Board have increased by 57 percent, from 748 to 1,174, the agency’s report explains. Unfair labor practice charges—claims that employers have violated worker rights detailed within the NLRA, including interfering with organizing drives or refusing union representation at meetings—also increased by 14 percent, from 7,255 to 8,254. Of these, 40 were filed against Amazon, which fought tooth and nail against multiple union campaigns at fulfillment centers in Alabama and New York.

To effectively serve workers, the NLRB must be able to respond quickly to complaints and conduct thorough investigations. But the board’s mission has been harder to enact as funding has dwindled. The rapid rise in representation petitions and charges of unfair labor practices represents skyrocketing demand that the agency simply does not have the staff or funding to respond to. Each petition filed requires an investigation and then an election; each unfair labor practice charge filed also requires investigation and potential hearings. More petitions and charges equal more work.

This uptick in cases, the report states, “comes during a period of critical funding and staffing shortages for the Agency.” The NLRB’s budget has stayed stagnant for almost a decade at $274.2 million. “Adjusting for inflation,” it reports, “the Agency’s budget is equivalent to $205.6 million, a decrease of 25 [percent] since [fiscal year] 2010.” And it’s not just money that is tight: according to the report, staffing levels at the NLRB have dropped 39 percent since fiscal year 2002; field staffing has shrunk by half. Meanwhile, the national private-sector workforce has grown; according to another study by the Economic Policy Institute, between 2006 and 2019, the number of workers per NLRB staff increased by 50 percent, from one full-time employee per 74,809 workers to one full-time employee per 112,201 workers. Declines in staffing have been followed by a decrease in case numbers.

NLRB General Counsel Jennifer Abruzzo, the board’s lead prosecutor, stated that, due to lack of funds and hands, the agency is failing to fulfill its mandate. “Right now, there is a surge in labor activity nationwide, with workers organizing and filing for more union elections than they have in the last 10 years. This has caused a significant increase in the NLRB’s caseload, and the Agency urgently needs more staff and resources to effectively comply with our congressional mandate.” Without an increase in funding from the federal government, organized activity will not receive the basic support it needs from the only body with authority to legally protect it.

In a larger sense, NLRB funding is also a labor issue, as according to the report, “more than three-quarters (77 percent) of the NLRB’s budget goes directly to staffing costs.” With two-thirds of the board’s required workforce intact and its caseload increased by almost 60 percent, there is a stark input-output problem that ensures that cases will be delayed and inefficient. “While our dedicated board agents continue to process petitions and conduct elections, investigate and prosecute statutory violations, and obtain remedies for victims of unfair labor practices, the NLRB needs a significant increase of funds to fully effectuate the mission of the Agency,” Abruzzo states. The NLRB staff union publicly confirmed this capacity problem, tweeting that they need more federal funding in order to continue doing their jobs.

Revving Up the Political Machine

To get more money for the NLRB, pro-labor politicians must put money where their mouths are. More funding is absolutely necessary to protect the right to organize and defend unions from an increased onslaught of anti-union propaganda and political assault by employers desperate to suppress organizing activity. But can Congress make it happen?

Last month, almost 150 members of Congress wrote a letter to the House Appropriations Committee demanding an end to flat funding for the NLRB. In the letter, the members called for a budget of $368 million in 2023—a nearly 35 percent increase from the current $274.2 million. The politicians argued that without more support, a “dramatic increase in labor activity” would overwhelm the agency entirely. The lawmakers also asked to allow electronic voting, which would dramatically reduce the labor of counting paper ballots by hand. “With this skyrocketing workload, the NLRB is now responsible for far more workers than a decade ago yet has been denied the funding to meet these statutory requirements,” the letter argues. In an effort seemingly aimed towards bipartisan appeasement, President Joe Biden proposed $317 million for the NLRB, which would certainly alleviate the board’s funding and staffing crisis but not resolve it.

Other legislative solutions would boost worker power but would still need the staffing to see them through. Bills like the PRO (Protecting the Right to Organize) Act would help workers who want a union but would require even more resources for the NLRB to execute its provisions. The PRO Act’s ambitious goal to comprehensively change the national labor landscape—ending right-to-work laws, which weaken unions in more than 24 states by not requiring workers to pay dues; cracking down on captive audience meetings, where employers lobby against union elections during organizing drives; allowing workers to directly approach the NLRB without employer involvement; financially penalizing employers who retaliate against unionizing employees; ensuring legal recourse and support for unions through arbitration or mediation; minimizing first contract timelines; and more—will require that all NLRB regional offices have more staff and support to realize the bill’s promises and handle an exponentially larger workload. Passing something akin to the PRO Act without more funding for the NLRB, in other words, would turn a powerful set of protections into a paper tiger.

The board also has its sights set on being less essential to union formation altogether. After being confirmed as the board’s lead prosecutor, Abruzzo expressed in a General Counsel memo her intent to revisit the Joy-Silk standard, which demands that the NLRB force employers to recognize unions if the latter present signed authorization cards from a majority of employees. Skipping the ballot box and switching to this process, called card check, would be one significant step towards pro-labor legislation, which would 1) free up the NLRB to prosecute employers who violate labor law, going beyond defensive protections and 2) take workers at their word, removing the period in which employers are able to deploy tactics to delay or discourage unionization.

Considering the current upsurge in organizing activity and a renewed national interest in the labor movement, protecting the right to organize means providing the legal infrastructure required to carry out those protections. A stronger NLRB could go even further than mitigating anti-union activity, fostering something closer to preventative care: political education, promotional outreach, and more expansive measures to strengthen labor’s reach. If the Democrats want to return the favor for decades of union support and secure such support long term, strengthening the NLRB is a surefire way to do so. If Republicans win a majority in the midterm elections this November, the story is sure to go a different way, and the agency will be starved even further—to the detriment of workers everywhere.