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Presidential election pivotal in how labor board will referee unions

By Grant Schwab, The Detroit News
Published: May 12, 2024, 6:02am

As the United Auto Workers continues its organizing drive in the South with an election next week at a Mercedes-Benz plant in Alabama, November’s presidential election looms as a potential turning point in the effort.

During their stints in the Oval Office, both Joe Biden and Donald Trump have used the National Labor Relations Board — an agency meant to serve as a referee in union elections and labor disputes — to significantly different ends, mirroring the board’s reputation for reflecting the policy priorities of whoever’s in power.

“The NLRB is just — it couldn’t be more important. It’s certainly more important than any time I can think of in my career,” said Sharon Block, a labor attorney and former member of the NLRB during the Obama administration.

Like many federal agencies, the NLRB is known for shifting the political orientation of its work between Democratic and Republican administrations. But former officials, labor scholars and union organizers say the recent shifts are beyond what they’ve seen in decades. Whoever wins November’s rematch can — and likely will — wield the agency’s power to either tamp down or charge up unionization efforts around the country.

“There’s never been a period, really, where the board wasn’t shaping labor policy,” said Kate Andrias, a labor scholar at Columbia Law School and former Obama White House associate counsel. Players on the labor and management sides of union battles disagree on how to characterize the NLRB under Biden and Trump, but they agree the changes between the administrations have been stark.

“Under the Biden administration, they’re going back on sometimes 75 years of case law and implementing standards that just had not been practiced for many decades,” said Rachel Greszler, an economist and senior research fellow with the conservative Heritage Foundation.

Libertarian labor scholar Sean Higgins, a research fellow at the free-market Competitive Enterprise Institute, said the agency during Biden’s administration has tried to continue an Obama-era trend of reinterpreting U.S. labor law and “rejiggering” itself to facilitate union membership.

He called Trump’s NLRB a “neutral sort of umpire organization” that harkened back to less politically divided periods of the past 35 years.

“The Trump-era board was basically trying to revert things to what had been the status quo for the most part during the George W. Bush, George Herbert Walker Bush and Clinton eras,” said Higgins, drawing a contrast from what he called the more activist positions taken by the NLRB during the Obama and Biden administrations.

“But then, obviously, some people are just going to view that as in and of itself being pro-management,” said Higgins, who has written in detail about how he thinks pro-labor advocates misinterpret the foundational National Labor Relations Act of 1935.

Advocates on the labor side do, in fact, reject his umpire characterization. Trump “turned an agency that is supposed to have as its mission to protect the rights of workers to engage in collective bargaining into an agency that seemed dedicated to putting obstacles in the path of workers who wanted to organize unions,” Block told The Detroit News.

Trump’s NLRB — through federal regulations, rulings in individual cases and purposeful inaction — went to great lengths to upend the laws governing union and collective bargaining rights, Block said, offering a laundry list of board actions that she said allow companies to “evade responsibility and accountability for how they treat working people.”

For one, Block said, the Trump-era NLRB issued rules that delayed union elections, returning to a new standard adopted during the Obama administration.

The Trump-era rule, which has been rescinded by the Biden administration, set more time before pre-election hearings and gave employers several levers for indefinitely delaying elections.

“That’s a serious thing,” according to Block, because it gives companies more time to wage “really, really vicious anti-union campaigns.”

Trump’s NLRB also issued rules that prohibited individuals from wearing union insignia at work, allowed employers to treat temporary and contract employees differently than full-time workers, limited workers’ abilities to use workplace email systems to communicate about unions, and more, according to the Economic Policy Institute.

The left-leaning and pro-union think tank released a roundup last week of how it claims Trump-era NLRB policies restricted workers’ rights and how the Biden administration — with mixed success — has tried to roll back those policies and replace them with ones that support unions.

The NLRB under Biden has also officially partnered with other federal agencies, like the Departments of Labor and Justice, to promote workers’ rights. Alexander Hertel-Fernandez, a former Department of Labor official during the Biden administration, highlighted several of those partnerships.

“If DOJ is investigating a particular employer and finds potential labor violations, they can refer those to the National Labor Relations Board. And vice versa,” he said.

The NLRB and Department of Homeland Security have also teamed up to ensure undocumented immigrants working in low-paying industries “are able to exercise their labor rights without fear of deportation,” according to Hertel-Fernandez.

But Greszler, the Heritage Foundation economist, said the Biden-era NLRB has taken actions that overstep its legal authority and create a hostile environment where employers feel like they need to walk on egg shells, even when they want to act in good faith to stay on good terms with workers.

She cited a 2022 memo from the NLRB’s current general counsel that banned mandatory staff meetings — known to some as captive audience meetings — as one such move. “Historically, this is how employers express their free speech rights to speak with their employees,” Greszler said.

She also decried the return to Obama-era election timelines, saying they allow for “ambush elections” that leave employers little time to prepare for union elections, and a far-reaching NLRB decision from last summer that automatically approves unions when companies are found to commit unfair labor practices in the leadup to an election.

That decision, according to Bloomberg Law, revived a legal doctrine dormant since 1969. Greszler said she thinks the decision played a crucial role in the recent UAW election at a Volkswagen plant in Chattanooga.

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“The Volkswagen Chattanooga plant twice voted against the UAW, but just last month, under these new procedures, they voted significantly in favor of it. And I suspect that Volkswagen simply sat back and didn’t feel like it could make its case because it was worried about an unfair labor practice being thrown out,” she said.

‘Personnel is policy’

The NLRB, at least nominally, is meant to be independent from the president. It is not part of the president’s cabinet, and its members serve five-year terms that can span administrations.

The five-member board — and administrative law judges below them — rule on unfair labor practice claims submitted to the agency.

However, the president chooses who sits on the board. Experts said there is an unwritten rule that presidents usually keep a 3-2 split between Democrats and Republicans on the board, though any president could decide to change that.

The president also appoints the NLRB’s general counsel, who is responsible for investigating unfair labor practice claims, prosecuting those claims and supervising the day-to-day operations of the agency.

“Personnel is policy,” said Block, noting how influential the presidential appointments can be. Those appointments guide the board’s disposition toward labor or management in disputes, the kinds of broader policies it sets and even the agency’s budget.

Look back: NLRB’s top prosecutor seeks big changes, faces uphill battle (2022)

Trump appointed attorney Peter Robb as the NLRB’s general counsel during his administration. Robb is widely viewed as pro-business and anti-labor. He previously worked for former President Ronald Reagan’s administration as a lawyer against the Professional Air Traffic Controllers Organization during the union’s infamous and contentious 1981 strike.

Robb refused to resign when Biden won the 2020 election, prompting him to become the only NLRB general counsel to be fired.

Biden went on to appoint Jennifer Abruzzo, an attorney the AFL-CIO previously endorsed to sit on the agency’s board, as the NLRB’s general counsel. She penned the controversial memo banning captive audience meetings.

Robb and the Trump administration tried to reduce the agency’s budget and staffing, whereas Abruzzo and the Biden administration have asked Congress to raise its budget to record-high levels.

The agency’s appointments and budget requests are helpful shorthands for each president’s position on labor issues, though the Trump- and Biden-era policies are more impactful.

Road ahead for UAW, others

Federal labor policy isn’t the only factor causing or determining the success of recent disputes, like the UAW’s walkouts last fall against the Detroit Three automakers or Hollywood actors’ and writers’ strikes against studios.

Labor activists told The News there is a feeling of momentum among unions and across the South, where unions have faced perennial challenges.

“I don’t want people to think it’s just the UAW doing this in the South,” said Carla M. Siegel, general counsel for the International Associations of Machinists and Aerospace Workers union.

The IAM union added about 17,300 new members last year, representing growth of about 5%, in part thanks to successful union drives for workers at five military bases in the southern states of Kentucky, Louisiana, Virginia, North Carolina and Texas.

“After decades of having the economy rigged against them, workers in the South are realizing their power and organizing with the IAM in ways we haven’t seen in generations,” IAM President Brian Bryant said in a statement.

And for the UAW in particular, experts pointed to the leadership of President Shawn Fain as crucial to the union’s success in negotiating lucrative contracts with the Detroit automakers and unionizing the Volkswagen plant in Chattanooga, Tennessee, last month.

“Shawn Fain has national ambitions,” said Marc Robinson, principal of consultancy MSR Strategy and a former GM internal consultant who was involved in labor negotiations.

Robinson added that what happens at the NLRB will have a marginal impact on the UAW’s unionizing and bargaining under Fain, who has been historically successful during his short tenure as president of the union.

“If there’s a second Biden administration, Shawn Fain will have the kind of access Walter Reuther had under Kennedy and Johnson,” said Robinson, referring to the influential architect of the UAW’s close relationships with former Presidents John F. Kennedy and Lyndon Johnson.

The November presidential election, while impactful for Fain’s ambitions to transform labor relations in the United States, will have a larger day-to-day impact on other unions, according to Robinson.

Though she’s optimistic, Siegel said that a second Trump administration would make it harder for the IAM union to continue its recent string of successes. The union voted overwhelmingly last summer to endorse Biden and has since circulated materials laying out how the Trump administration used the NLRB and other agencies to “attack” workers.

“Because of the energy and momentum we’re seeing in the labor movement right now, I think the NLRB is more important than ever,” said Block, the former Obama-era NLRB member. “If there isn’t leadership at the board that is committed to the agency living up to the mission of the (National Labor Relations Act) — and running that agency efficiently and effectively — it could have an impact on this moment.”

She agreed that a return to Trump’s pro-management policies would certainly make unionization efforts more difficult. But she was quick to note, too, that even if Trump retakes the White House, the impact could cut more than one way. She predicted a “renewed commitment or even radicalization of organizing tactics.”

Hertel-Fernandez agreed, pointing to the UAW’s efforts in the South: “I think this drive, in particular, shows that it is possible for workers to win, even when the odds are stacked against them.”