has portrayed himself as an exceptionally pro-union president
, vowing to help rebuild unions
and bring collective bargaining to more workers. Later this summer, he will have the opportunity to at least partially deliver on that promise by reshaping the National Labor Relations Board
for the next several years.
One seat on the five-member board is already vacant, and another will become available at the end of August if Biden's nominees are confirmed by the Senate
. If Biden's nominees are confirmed, Democrats
will have the majority for the first time since 2017, when then-President Donald Trump
installed two GOP
members and shifted the board's balance to the right.
Although many Americans are unfamiliar with this independent agency, it plays a crucial role in determining which workers can join a union and how difficult or easy it is for them to do so.
Biden has already named his two nominees for new board members, union-side attorneys Gwynne Wilcox
and David Prouty. If Democrats, who hold a slim 50-50 Senate majority with Vice President Kamala Harris
casting the deciding vote, can confirm both nominees, the board will shift from a 3-1 Republican majority to a 3-2 Democratic
Because the Trump board's precedent-breaking decisions were so broad, this is not your typical pendulum swing.
Former Democratic member of the National Labor Relations Board, Wilma Liebman
Unions and other Trump board critics are hoping that Biden's nominees will reverse some of the most contentious decisions and rules made in the last four years, making it easier for more workers to bargain collectively.
“The Trump NLRB issued so many destructive decisions that we could write several law
review articles detailing which ones need to be reversed in order to protect a worker’s right to join a union,” said Benjamin Sachs, a Harvard
Law School labor law expert.
The current chair of the board, Democrat Lauren McFerran, said on a panel in February that Republican members had weakened the law at a time when workers desperately needed it.
“In these perilous economic times, that is exactly the wrong direction for the act to be going,” she said.
A Democratic majority appears to be ready to examine a few specific areas.
Trump Cases Will Almost Certainly Be Overturned
Independent contractors are not allowed to form unions under the law; only bona fide employees are. This is one of the many benefits to employers of classifying workers as contractors, and Republican policymakers try to give companies as much leeway as possible in doing so.
The Trump labor board was no exception. In its January 2019 SuperShuttle decision, the GOP majority overturned an Obama-era precedent that had made it more difficult for employers to classify workers as contractors, a victory for so-called gig economy
businesses that rely on the contractor model to avoid employment laws.
A few months later, the board's general counsel issued a memo directly addressing the Uber
employment issue, stating that the ride-hailing app's drivers are contractors, not employees, and citing the SuperShuttle decision.
In late 2019, the Trump board issued another significant ruling that benefited employers, allowing companies to prohibit employees from discussing union activities via email. The decision in Caesars Entertainment
also applies to other forms of company communications, such as Slack or other apps, that employees may hope to use when organizing a union.
The GOP majority's decision overturned a major Obama-era NLRB decision that had reached the opposite conclusion, that a company email system was essentially the modern-day office water
cooler, and that employees had the right to use it to discuss job improvements.
Former Democratic NLRB chair Wilma Liebman said a new board would likely reconsider cases like Caesars Entertainment that limit a union's right to access a workplace
, as well as any Trump-era case that limited the concept of "protected concerted activity," which is at the heart of the law.
The Trump NLRB issued so many harmful decisions that we could write several law review articles describing which ones should be overturned.
Harvard Law School's Benjamin Sachs is a labor law expert.
In 2017, Trump's Republican board appointees repealed another major Obama-era decision, Specialty Healthcare, which unions hoped would make it easier to organize workers.
Specialty Healthcare gave unions a greater say in shaping bargaining units, allowing for smaller groups of skilled workers to unionize as opposed to the entire workforce in a given facility, but the Trump board reversed that decision in a case known as PCC Structurals, making it more difficult for organized labor to form these more tailored unions.
In many cases, the Trump-era standard would assist employers in keeping a union out of a workplace entirely; however, a Democratic board might look to return to the Obama-era standard.
'This Isn't Your Average Pendulum Swing'
It is common for the NLRB to reverse previous rulings when one party gains control and becomes friendlier or more hostile to unions. However, Liebman believes the Trump-era board went further than its predecessors in overturning previous rulings and narrowing the scope of collective bargaining law.
“In my opinion, this is not the typical pendulum swing because the Trump board’s reversals of precedent were so broad and deep,” Liebman said, adding that “it will take an extraordinary effort to get the law back to even where it was at the end of [Obama’s] term, let alone move it forward.”
The Trump board shaped a lot of policy, not just through case decisions, but also through rule-making. For example, last year, the board issued a business-friendly joint employer rule, making it easier for companies like McDonald
's to avoid being considered employers alongside their franchisees.
According to Liebman, a new board could scrap the previous majority's rules, write entirely new ones, or take on and decide new cases to change the precedents set by the Trump era.
Despite the fact that Democrats will not take control of the NLRB for several months, Biden has already made significant changes. On his first day in office, he fired Trump's appointed general counsel, Peter Robb, in a controversial move that infuriated Republicans
. Robb's interim replacement, Peter Sung Ohr, quickly began unwinding many of his predecessor's policies that critics said undermined the agency.
Many labor experts on the left believe that the law is fundamentally broken, and that the framework developed in the 1930s for forming unions is failing workers. The union density rate in the United States
is near a historic low, with only 10.8% of workers belonging to a union. Democrats are pushing for sweeping changes to the law through the Protecting the Right to Organize Act, but it is currently stalled.
According to Celine McNicholas, labor counsel at the Economic Policy Institute, the NLRB can only do so much within the current system to change the landscape for workers' bargaining power.
Even in its limited capacity, McNicholas said the labor board's direction affects workers all over the country, citing the Trump board's memo exempting Uber's tens of thousands of drivers from collective bargaining law.
“There are certain things the agency can do that make a significant difference,” she said, adding that “when those cases present themselves, they can certainly look for ways to either uplift or decimate workers’ rights.”