The Fight Inside the NLRB for Union Rights

In mid-November, dozens of workers gathered in Washington, D.C. to bring their grievances to the nation’s highest labor authority, the National Labor Relations Board (NLRB). Though they were armed with picket signs and a signature giant “Scabby the Rat” balloon, the protesters weren’t filing a legal charge; they were the agency’s own staff—fed up with the Trump Administration’s attacks on their own labor rights.

The rally outside of NLRB headquarters was a rare display of workplace unrest within the agency, whose staff execute the day-to-day mechanics of labor law for workers in the private sector. This includes processing complaints under the National Labor Relations Act, administering union elections, and helping individuals prepare to litigate unfair labor practice charges against private firms, which can be decided through regional administrative law courts or appealed to the three-member board.

But the NLRB’s two staff unions—the NLRB Union, which represents staff at the agency’s forty-nine field offices and administrative staff at headquarters, and the NLRB Professional Association, which represents professional staff at headquarters—say their union rights are facing unprecedented attacks under the Trump Administration. 

The unions’ chief concern is a set of executive orders aimed at weakening federal worker unions. The orders, which were issued in 2018, then blocked by a court injunction that was lifted earlier this year, limit the amount of official work time that federal employees are able to devote to union activities. The orders also shrink the amount of time that federal workers have to improve their performance after a poor evaluation, from 120 days to thirty, and encourage agencies to fire underperforming workers rather than suspending them first. 

Unions at many federal agencies have been jarred by the executive orders—prompting the House to pass legislation to strengthen federal employees’ collective bargaining rights and other protections. The orders will particularly strain the NLRB unions, which rely entirely on their members, rather than outside paid staff, to handle union business. 

“We have no paid staff. In order to function as representatives of the employees . . . We depend entirely on volunteers,” said Karen Cook, president of the NLRB Professionals Association, at the rally. “And so to take away official time to talk with people about their grievances, to prepare their grievances, to even prepare for bargaining on those few occasions when the agency decides it’s going to bargain with us. We have no time to do that. We have to now take leave without pay. I’m on leave without pay today.”

The NLRB unions argue that the executive orders prevent them from undertaking basic union functions, including meetings and communications with members through their internal email system. The unions say that the agency’s Trump-appointed leaders, Chair John Ring and General Counsel Peter Robb, have unilaterally imposed these restrictions without negotiating with the unions first, as required by their collective bargaining agreements.

The unions also accuse the agency of deliberately withholding funds for the agency’s operating budget allocated by Congress—failing to spend several million dollars in 2018 and 2019 combined. Representative Rosa DeLauro, who spoke at the NLRB union rally, told Bloomberg News that Congress could investigate the NLRB for potential misuse of federal funds.

The suspicion around the withholding of funds reflects a general frustration with the NLRB within organized labor—whether it’s the lawyers working for Board, or the unions on the docket. 

Although the NLRB’s political bent generally reflects whatever administration is in power, staff members as well as labor advocates say the Trump Administration has pushed the agency beyond the usual oscillations between Democrats and Republicans.

The NLRB is now led by a rightwing, pro-business general counsel (Robb), with a conservative majority on a board dogged by alleged conflict of interest due to some members’ corporate ties. The primary impact of the new leadership has been a sharp rightward shift in its rulings. But Robb has also sought to restructure the agency in a way that critics see as a political power grab. 

Last year, he announced plans to centralize the agency’s structure, curtailing the authority of the career civil servants who have historically enjoyed significant autonomy at the regional level. At the same time, the union argues, the number of full-time employees fell by about 10 percent from fiscal years 2017 to 2018, coinciding with a fall in the number of unfair labor practice claims filed each year.  

The encroachment on the public-sector union rights of its employees reflects a parallel labor struggle within the agency itself. 

NLRB executives claim they are simply streamlining the processing of claims and making the staff more efficient. But staff say they are increasingly pressured to churn through cases at a faster rate, making it harder to investigate cases thoroughly and help claimants build cases.  

The agency’s declining capacity seems to serve what has become, under Trump, an anti-worker agenda. While NLRB unions are not subject to the board’s decisions, the board has issued multiple rulings that have effectively weakened union rights and labor protections in the private sector, such as curtailing the rights of workers to picket at a venue that is not their employer’s property, and allowing employers further limit union organizers’ access to company property.

The agency is also circumventing the litigation process altogether by changing administrative rules directly, rather than overturning Obama-era precedents through board decisions. Among the most controversial rulemaking plans are a rollback to the joint-employer standard—which determines whether subcontracted and franchise workers are considered employees of the parent company as well as their direct employer—and the elimination of collective bargaining rights for graduate student workers. 

While the NLRB has jurisdiction over only private workplaces (federal employees have their own version, the Federal Labor Relations Authority), the encroachment on the public-sector union rights of its employees reflects a parallel labor struggle within the agency itself. 

Adam Naill, director of legislative affairs for the NLRB Professional Association, tells The Progressive that the executive orders “upset the entire system of collective bargaining, of workers’ rights within the federal government.” Yet he stresses that the NLRB unions’ objection to the weakening of federal workers’ rights are nonpartisan: “It’s about our rights and their depriving us of our rights under the law. And so we have no real recourse but to stand up and fight back.”

When the NLRB is accused of siding with bad bosses, it’s a political matter. But when its own employees accuse the agency of being a bad boss, it’s a question of fairness and due process. And now unionized civil servants are warning from the inside, that when the working conditions of the agency’s staff deteriorates, so does its ability to defend the workplace rights of others.

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