The NLRB Protects Workers’ Right To Organize, Yet Remains Underfunded

Unions today enjoy record levels of popular support, especially among the members of Generation Z now entering the workforce.¹ While this surge in worker interest in union membership has translated to a higher rate of organizing victories, workers’ success depends in no small part on the legal protections for union organizing and collective bargaining established by the National Labor Relations Act of 1935 (NLRA) and administered by the National Labor Relations Board (NLRB).² Under appointees from the Biden administration, the agency is wielding its adjudicatory and rule-making authority to undo decisions and regulations that stack the deck in favor of lawbreaking corporations and to ensure that existing law is properly enforced.

However, the NLRB lacks the funds it needs to fulfill its mission. Congress has not increased funding for the agency since 2014³—and even this amount was a decline from the peak funding level reached in 2010.⁴ Due to the effects of inflation, this flat funding has significantly reduced agency resources; the number of staffers has dropped by 30 percent since 2010.⁵ In other words, lawmakers are quietly undermining Americans’ existing bargaining rights by starving the NLRB of essential operating funds.

Despite inadequate funding, the NLRB has made great progress under its new leadership. The agency has pursued a wide-reaching enforcement agenda in its authority to protect workers’ right to come together in unions, which has coincided with strong results at the ballot box for worker organizing as workers continue to win unions for their workplaces at higher rates via election.

According to an analysis from the Center for American Progress, workers today enjoy a higher rate of union election success than at any time during the previous administration. In addition, growing numbers of workers are filing petitions for union elections at the NLRB.⁶ Similarly, CAP analysis finds that the NLRB ordered corporations to reinstate more illegally fired workers in 2021—the first year of the Biden administration—than during all four years of the Trump administration.⁷ Furthermore, the agency has taken on major corporations engaging in illegal anti-union activities during high-profile organizing drives.⁸

The NLRB is also updating rulings and regulations to boost efficiency in recognizing unions and empower workers to negotiate with all corporations that set their workplace standards. NLRB General Counsel Jennifer Abruzzo has urged the agency to discourage employers from engaging in scorched-earth pressure campaigns to convince their workers to vote against unions.⁹

Enforcing the right of workers to come together on the job will help correct the vast gap between workers who want to form a union and those who are actually able to do so. Seventy-one percent of Americans approve of unions—the highest level since 1965—and nearly half of nonunion workers say they would join a union if they could.¹⁰ Yet the private sector unionization rate was just 7 percent in 2021.¹¹

Additional funding is sorely needed for the NLRB to fulfill its mission. Union elections and unfair labor practice cases are rising, even as flat funding has resulted in falling agency staffing levels. The NLRB must also rebuild after Trump administration appointees weakened the agency, culminating in a last-place ranking among all midsize federal agencies regarding employee satisfaction and satisfaction with senior leaders’ policies in 2019.¹²

To ensure that the agency can pursue lawbreakers to the fullest extent of the law and reassert its fundamental mission to encourage collective bargaining, pro-worker lawmakers in Congress must fight for greater funding for the NLRB.

The NLRB is an independent agency that oversees nearly all union elections at private workplaces in the United States. Congress established the NLRB to enforce the NLRA, which protects the right of most private sector workers to organize into unions, bargain collectively over their terms and conditions of employment, and engage in other concerted action for mutual aid or protection.¹³ The NLRA serves as the primary policy of the United States to encourage collective bargaining as a means of redressing the “inequality of bargaining power” between individual workers and corporate employers.¹⁴ The NLRB conducts union elections, promulgates regulations, and adjudicates cases involving alleged labor law violations—all driven by the explicit mission to protect “the rights of most private-sector employees to join together, with or without a union, to improve their wages and working conditions.”¹⁵

Although the NLRB is limited in its ability to protect worker organizing due to weaknesses in current law—which needs to be reformed through policies such as the Protecting the Right to Organize (PRO) Act¹⁶—the agency plays a critical role in ensuring that workers have a fair shot at organizing a union. NLRB rulings govern important aspects of an organizing campaign, such as where and how workers vote; how, where, and when they can discuss union matters or workplace conditions with colleagues; and whether certain corporate actions to undermine organizing campaigns or actions from unions constitute unfair labor practices.

For example, when a corporation illegally fires a worker trying to organize a union—a frequent occurrence in organization campaigns¹⁹—the NLRB investigates these potentially unfair labor practices and can issue orders to stop lawbreaking and take other measures, such as reinstating fired workers. The agency also has the authority to engage in rule-making, including to establish procedures and standards for all the union elections it oversees. Altogether, the NLRB’s rule-making and adjudicatory powers can dramatically affect a union drive’s chances of success.²⁰

The NLRB’s work to reinvigorate the agency’s legal authority has directly translated to greater successes for worker organizers. Recent action has seen the NLRB pursue more remedies for illegally fired workers and has resulted in more workers petitioning for and winning more union elections. As Figure 1 shows, in fiscal year 2021 alone, the NLRB won more reinstatement offers for workers fired illegally for engaging in protected organizing activities than during all four years of the Trump administration. Enforcing the NLRA helps create an environment where workers can organize and build unions with the knowledge that the NLRB will protect their legal rights.

Figure 1

The NLRB’s actions to enforce worker organizing rights at Amazon, Starbucks, and other large corporations have received increased press attention. For example, an NLRB judge required Amazon to reinstate an employee illegally fired at a Staten Island, New York, site in April 2022,²¹ and an agency regional director approved a settlement with the company that required Amazon to rescind policies restricting worker organizers’ access to facilities where organizers may interact with coworkers.²² A federal judge also granted an NLRB field office petition for Starbucks to reinstate seven fired workers engaged in protected organizing work in Memphis, Tennessee.²³ Around the same time, another NLRB field office filed a complaint alleging that Starbucks unlawfully attempted to withhold pay raises from recently unionized workers.²⁴ In addition, an NLRB general counsel investigation alleged that Activision Publishing also attempted to withhold the pay raises of unionized playtesters at Raven Software.²⁵

CAP’s analysis of NLRB elections data confirms that the agency’s efforts to uphold workers’ rights under the law come as workers are winning more elections. For this analysis, CAP analyzed all closed NLRB union certification elections per calendar year since 2017 that resulted in either a successful union certification for representation or a certified count of results if workers voted against unionizing that bargaining unit. CAP found that pro-union workers have achieved an increasing win rate since President Joe Biden took office in 2020. As shown in Figure 2, the rate at which workers win unions in NLRB elections has climbed steadily during the first two years of the Biden administration, reaching 71.4 percent from January 2022 to October 2022 and exceeding any level achieved under the previous administration.

Figure 2

The union election win rate is growing even as more workers file petitions for elections. The NLRB reported a 53 percent increase in election petitions from fiscal year 2021 to fiscal year 2022.²⁶ Figure 3 shows that on a calendar year basis, closed union elections are on track to reach the levels achieved before the COVID-19 pandemic reduced organizing activity.

Figure 3

The NLRB’s enforcement agenda goes far beyond legal action against lawbreakers. The agency has engaged in rule-making, case rulings, and outreach to other federal agencies to modernize and simplify the work of forming a union and counteract years of corporate efforts to undermine or curtail workers’ organizing rights under the law.

During the Trump administration, the NLRB issued complicated rules that slowed the election process for workers. These rules gave anti-union corporations more opportunities to fight workers’ organizing campaigns and reduce the likelihood of a union victory.²⁷ In addition, previous NLRB appointees adopted rules that made it easier for large corporations to escape liability for labor violations and avoid bargaining obligations by relying on smaller companies—such as franchisees, temporary staffing agencies, and labor contractors—to supply their labor force.²⁸ President Biden’s appointees to the NLRB are working to reassert workers’ rights under the NLRA—including by accelerating the process for forming a union, removing administrative inefficiencies that hampered organizing,²⁹ and proposing a rule that would hold all employers who control workers responsible for collective bargaining.³⁰

In addition, NLRB General Counsel Jennifer Abruzzo is working to undo decades of corporate activity that undermined the right to bargain collectively and reestablish precedent that restores organizing rights to workers. For instance, to further simplify the process of forming a union, Abruzzo recommended that the NLRB revive³¹ a once-common legal standard known as the “Joy Silk” doctrine. Reviving this standard would prevent corporations from refusing to recognize the union after a majority of workers have signed authorization cards without a good faith doubt regarding the workers’ majority status.³² Abruzzo is also seeking to pare back corporations’ ability to deploy union-busting techniques, such as captive audience meetings, that coerce workers by forcing them to listen to anti-union propaganda.³³

In addition to rule-making and setting precedent that protects worker organizing, the NLRB is also working with agencies across the administration to hold lawbreakers accountable. As part of the recommendations outlined in a White House Task Force on Worker Organizing and Empowerment report, the NLRB has renewed its commitment to working with other federal agencies to enhance worker protections and investigate employer wrongdoing.³⁴ For example, Abruzzo signed a memorandum of understanding with the Wage and Hour Division of the U.S. Department of Labor to encourage information sharing and joint enforcement actions against employers who retaliate against workers trying to unionize.³⁵ Abruzzo also signed a similar memorandum with the Antitrust Division of the U.S. Department of Justice,³⁶ and she strengthened the NLRB’s agreement with the U.S. Department of Homeland Security to prevent businesses from reporting workers to U.S. Immigration and Customs Enforcement for lawfully trying to organize a union.³⁷

American workers need a strong NLRB with sufficient staffing and funding to enforce the NLRA. However, funding for the NLRB is lower today than it was more than a decade ago.³⁸ A hostile political environment has effectively placed a hard cap on agency funding, leading to declining staffing levels that make executing a reinvigorated pro-worker enforcement agenda, on top of existing representation and unfair labor practice casework, a challenge.

Funding allocated by Congress for the NLRB peaked at $283.4 million in fiscal year 2010³⁹ and leveled off to $274 million in fiscal year 2014, with no increase since. In actuality, this “flat” funding represents a decline due to inflation, as the 2014 funds were worth $334 million in 2022 dollars.⁴⁰ (see Figure 4) As noted, the funding decline has dramatically decreased staffing levels and hindered agency productivity even as caseloads have risen. In the past decade, the number of staffers at the NLRB has fallen by 30 percent—from its peak of 1,733 in fiscal year 2010 to 1,210 in fiscal year 2021.⁴¹ During that same time span, private sector employment grew by 15.6 percent.⁴² Consequently, there has been a corresponding dramatic increase in the number of private sector workers that each agency member serves—1 NLRB staffer for every 61,282 workers in 2010 compared with 1 staffer for every 101,419 in 2021.⁴³

Figure 4

The NLRB recognizes that its lack of budgetary and staffing resources is “alarming,”⁴⁴ as these shortfalls limit the agency’s ability to carry out its duties and places undue pressures on agency employees. Moreover, a 2021 report from the Government Accountability Office (GAO) found that years of underfunding took its greatest staffing toll on the NLRB’s regional offices, where representation and unfair labor practice cases most frequently originate.⁴⁵ The GAO’s analysis of data from the Office of Personnel Management’s (OPM) 2019 Federal Employee Viewpoint Survey found that overall employee satisfaction ranked last out of 17 midsize federal agencies, and internal stakeholders cited by the GAO report attributed low staff morale to pressure to process cases faster, understaffing, and demand from resulting heavier workloads.⁴⁶ In addition, mismanagement under leadership installed during the Trump administration resulted in an investigation after the agency failed to spend its allocated budget in fiscal year 2019.⁴⁷ Furthermore, the GAO concluded that the OPM’s survey results demonstrate that “NLRB employees were increasingly dissatisfied with senior leaders’ policies,”⁴⁸ meaning that NLRB leaders appointed by President Biden have had to focus on “righting the ship” since beginning their tenure.⁴⁹

In recent years, pro-worker majorities in both houses of Congress have proposed increasing agency funding—only to lose these boosts to negotiations during the legislative conference process. For instance, while the fiscal year 2022 appropriations bill presented by the Democrat-controlled Senate Committee on Appropriations⁵⁰ included a 10 percent increase in NLRB funding to $301.9 million⁵¹ and the version from the House Committee on Appropriations⁵² included an even larger increase to $316.9 million,⁵³ the final spending bill—which needed the support of at least 10 Senate Republicans and ultimately passed with affirmative votes from 18 Senate Republicans—contained no funding increases.⁵⁴ Rep. Virginia Foxx (R-NC), the most senior Republican member of the House Committee on Education and Labor, stated that she believed, “Increasing the NLRB’s annual budget to over $300 [million] is the equivalent of using a spray bottle to put out a grease fire – it’s an inherently stupid idea.”⁵⁵ However, the NLRB’s peak funding in 2010 easily exceeded $300 million when adjusted for inflation.⁵⁶

Concerns from within the agency and the labor movement about low funding levels have renewed President Biden’s efforts to increase the NLRB’s budget. As a result, in fiscal years 2022⁵⁷ and 2023,⁵⁸ President Biden submitted budgets to Congress requesting funding increases for the NLRB, with his 2023 budget allocating the agency $319.4 million. The NLRB noted in its justification for 2023 that, of the $45 million budget increase requested, 77 percent would go toward labor costs necessary to reverse the trend of declining personnel as caseloads rise.⁵⁹

Yet even these proposed increases do not represent a return to the 2010 peak funding and staffing levels. The current budget request would only allow hiring an additional 90 full-time employees and, in 2022 dollars, would fall short of the inflation-adjusted 2010 budget of $375 million.⁶⁰ The Biden administration also attempted to allocate more funding for the NLRB through the reconciliation process in his Build Back Better agenda,⁶¹ although this funding ultimately did not appear in the Inflation Reduction Act, which became law in 2022.⁶² That even modest increases in NLRB funding have not succeeded underscores the NLRB’s need for support from pro-worker members of Congress to overcome opposition to increased funding for agency rebuilding efforts.

Even in an increasingly divided nation, popular support has coalesced around worker empowerment and union organizing.⁶³ The NLRB’s agenda for achieving its mission to protect collective bargaining rights under the law aligns with popular sentiment and the Biden administration’s efforts to empower workers and protect the right to organize. Workers want to unionize,⁶⁴ and they have done so with increasing success under President Biden’s appointees to the NLRB. Nevertheless, low funding—the consequence of a successful campaign by anti-worker politicians to sabotage the NLRB—continues to harm the agency’s mission to ensure that all American workers can exercise their right to come together in unions. Pro-worker members of Congress must act to make sure that the NLRB receives the funding increases it needs to fulfill its purpose. This mission grows all the more imperative as workers continue to organize their colleagues across the country.