Now that Democrats have a bare majority in the U.S. Senate, thanks to the Georgia runoff elections in January, President Biden’s choices for executive-branch positions, judgeships, and other jobs throughout the federal bureaucracy should, in theory, face few obstacles to Senate confirmation. Given the nonexistent margin for error, this will require the cooperation of every single Democratic senator—never something I would recommend betting on. But Biden is certainly in a stronger position than it seemed he would be in the immediate aftermath of his party’s lackluster down-ballot performance last November.
Some of his cabinet picks have already been confirmed in lopsided bipartisan votes, but the Democratic majority is likely to matter most when it comes time for more controversial nominations, potentially including at least one to the Supreme Court. One vitally important but relatively lesser-known agency where Biden is sure to encounter fierce resistance from Republicans, regardless of whom he selects to lead it, is the National Labor Relations Board (NLRB), which administers federal labor law. Nevertheless, he and Senate Democrats should act, as soon as legally possible, to appoint and confirm new members who will get to work undoing the Trump board’s anti-labor reign of terror.
Established in 1935 by the New Deal–era law known as the National Labor Relations Act (NLRA), the NLRB functions as a kind of quasi-judicial body that interprets and applies the NLRA, and adjudicates disputes between unions and employers. Its rulings in these cases carry precedential weight, so their consequences can be long-lasting. By tradition, the five-member Board has no more than three members from the president’s party, and currently has a 3-1 Republican majority with one vacant seat.
Encouragingly, Biden has already made two important decisions, naming Democrat Lauren McFerran as the chairwoman of the board and taking the extraordinary step of firing Peter Robb, the NLRB’s Trump-appointed general counsel, after Robb refused Biden’s request to resign voluntarily. Some observers worry that this action could embolden future Republican presidents to immediately terminate a general counsel chosen by a Democratic predecessor, but Biden did the right thing. Robb was using his position to sabotage the agency from within. He pursued a controversial reorganization plan that sought to centralize power under himself and cut staff at the NLRB’s regional offices. He was forced to backtrack from some elements of the plan after facing backlash, but, as the Nation reported last fall, the NLRB workforce has shrunk by about 20 percent over the past three years, and those who remain say they have been asked to work faster with fewer resources.
One of the primary responsibilities of the general counsel is to serve as a prosecutor of cases before the board having to do with allegations of unfair labor practices. Their office receives and reviews complaints from both unions and employers, then decides which ones to pursue. This discretion entails a great degree of power, a power that Robb used to aggressively move against unions. In one case, he tried to have “Scabby the Rat”—a large inflatable rat often brought in by unions during labor disputes to protest an employer’s use of nonunion replacements, or “scabs”—declared a form of unlawful “coercion.”
Biden was legally free to fire Robb, but board members cannot be terminated so easily: the NLRA provides that they can be removed only for malfeasance while in office—a demanding legal standard. The president could fill the one vacant seat right away, but he will not be able to alter the balance of power on the board for another five months or so, since none of the Republican members’ terms will expire until August.
Even if Democrats were unable to reclaim a majority on the board, simply letting the Trump appointees’ terms expire would be a positive development. The Supreme Court has ruled that a board with fewer than three members lacks a quorum to act, so at the very least the wrecking ball would be stilled. And the damage done to federal labor law over the past few years by Trump’s three appointees—attorneys William Emanuel, Marvin Kaplan, and John Ring—has been extensive.
The NLRB makes policy in two different ways: first, by handing down decisions in cases involving union-representation petitions or charges of unfair labor practice; second—and much less commonly—by issuing regulations through a formal notice-and-comment rulemaking process. In its case law decisions, the Trump-era NLRB has made it easier for employers to misclassify workers as independent contractors with no right to unionize, and to retaliate against those who organize or discuss union business using company email. It has also dramatically shrunk the set of employees at religious institutions who are covered by federal labor law, ruling in last year’s Bethany College decision that even secular faculty at religious schools have no right to unionize (a decision that seems to have been welcomed by administrators at some Catholic universities, despite the Church’s teaching on the dignity of labor and the right to form unions).
Rulemaking, to which the NLRB has historically resorted only very infrequently, has also been used by the Trump board to aggressively further its anti-worker objectives: rulemaking has been employed more times since 2017 than in the previous thirty years. Among the rules finalized is one that would make it harder for fast-food chains and other corporations that use a franchise model to be deemed “joint employers,” who are required to bargain with their franchisees’ workers. One of the new proposed rules would restrict unions’ access to workers’ contact information; another would take away the right of student workers to unionize, undermining the efforts of unions like my own, the Graduate Workers of Columbia (GWC-UAW Local 2110), to collectively bargain with universities on behalf of their research and teaching assistants and to reverse the trend toward the increasing precarity of academic labor.
Fortunately, Biden now has the power not only to let the Trump appointees’ terms lapse, but to replace them with pro-worker members who will uphold the actual legal mandate of the board—which is to encourage collective bargaining—and get to work reversing the anti-labor actions of the current majority. And the prospects for new members to actually win confirmation now seem fairly bright: even the ever-fickle Sen. Joe Manchin of West Virginia voted for Obama’s nominees to the NLRB, and against Trump’s.
Yet leaving so much of federal labor law in the hands of an agency whose ideological makeup is in constant flux means that Biden’s board may find its achievements to be just as short-lived as those of Trump’s board, or Obama’s. In the long run, what is needed is a wholesale updating of the NLRA to codify many of the protections for workers that are now at risk every time a Republican president is elected, and to move away from a system of labor relations based on negotiations between unions and individual employers toward one in which collective bargaining takes place at the level of entire industries or sectors. But that would require the Senate’s new Democratic majority to eliminate, or at least dramatically curtail, the filibuster. And for now at least, there seems little chance of that.