Joe Biden has cast himself as an exceptionally pro-union president, vowing to help rebuild unions and bring collective bargaining to more workers. Later this summer, he’ll have the opportunity to at least partly deliver on that pledge 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 open up at the end of August. If Biden can get his nominees confirmed by the Senate, then Democrats will have the majority for the first time since 2017, when then-President Donald Trump installed two GOP members and swung the board’s balance to the right.
The NLRB referees disputes between employers and unions, functioning as a kind of high court for collective bargaining in the private sector. 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 announced his two picks to be the new board members, union-side attorneys Gwynne Wilcox and David Prouty. If Democrats ― who hold a narrow 50-50 Senate majority, with Vice President Kamala Harris casting the tie-breaking vote ― can confirm both nominees, then the board would flip from a 3-1 GOP majority to a 3-2 Democratic majority.
This is not the usual pendulum swing because the reversals of precedent by the Trump board were so expansive.
Wilma Liebman, former Democratic member of the National Labor Relations Board
Unions and other critics of the Trump board are hoping Biden’s nominees can reverse the most controversial decisions and rules of the last four years, and ultimately make it easier for more workers to bargain together.
“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 labor law expert at Harvard Law School. “I think the Biden board will have its work cut out for it.”
The board’s current chair, Democrat Lauren McFerran, said on a panel in February that Republican members had weakened the law at a time when workers need it badly.
“That is exactly the wrong direction for the act to be moving in these perilous economic times,” she said.
A few particular areas seem ripe for review by a Democratic majority.
Trump Cases Likely To Be Overturned
Under the law, independent contractors are not eligible to form a union; only bona fide employees are. It’s one of the many benefits to employers in classifying workers as contractors, and Republican policymakers try to give companies a long leash to do so.
The Trump labor board was no different. In its January 2019 SuperShuttle decision, the GOP majority reversed an Obama-era precedent that had made it harder for employers to put workers in the contractor bucket. It was a win for so-called gig companies 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 employment question at Uber, saying the ride-hailing app’s drivers are contractors and not employees. The memo relied on the SuperShuttle decision.
In late 2019, the Trump board delivered another significant ruling that benefited employers, allowing companies to forbid workers from using their email systems to discuss union activities. The decision in Caesars Entertainment also applies to other forms of company communications, such as Slack or other apps, that workers might hope to use when organizing a union.
The GOP majority’s decision overturned a major Obama-era NLRB ruling that had come to the opposite conclusion ― that a company email system was basically the modern-day office water cooler, and that workers had the right to use it to discuss improving their jobs.
Wilma Liebman, a former Democratic chair of the NLRB, said a new board would likely take a fresh look at cases like Caesars Entertainment that restrict a union’s right to access a workplace. The same goes for any Trump-era case that limited the concept of “protected concerted activity” ― the act of joining together to improve pay and working conditions ― which lies at the heart of the law.
The Trump NLRB issued so many destructive decisions that we could write several law review articles detailing which ones need to be reversed.
Benjamin Sachs, labor law expert at Harvard Law School
In 2017, Trump’s Republican board appointees took an axe to another major Obama-era decision, Specialty Healthcare, that unions had hoped would make it easier to organize workers.
Speciality Healthcare gave unions a greater hand in shaping bargaining units, allowing for smaller groups of skilled workers to unionize ― employers derisively called these “micro units” ― as opposed to the entire workforce in a given facility. But the Trump board reversed that decision with a case known as PCC Structurals, making it harder for organized labor to form these more tailored unions.
In many cases, the Trump-era standard would help employers keep a union out of a workplace entirely. But a Democratic board might look to return to the standard of the Obama years.
‘Not The Usual Pendulum Swing’
It’s common for the NLRB to reverse previous rulings after party control switches and becomes either friendlier or more hostile to unions. But Liebman said she believes the Trump-era board went further than its predecessors in overturning earlier rulings and narrowing the scope of collective bargaining law.
“In my view, this is not the usual pendulum swing because the reversals of precedent by the Trump board were so expansive and so deep,” Liebman said. “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 only through case decisions, but through the rule-making process. For instance, the board last year issued a business-friendly joint employer rule, making it easier for companies such as McDonald’s to avoid being considered employers alongside their franchisees.
Liebman said a new board has different ways of undoing the markings of the Trump era. It could scrap the previous majority’s rules, write entirely new ones, or take on and decide new cases to alter the precedents.
Even though it will be months before Democrats can take control, Biden has already made significant changes at the NLRB. On his first day in office, he fired the Trump-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’s mission.
Many labor experts on the left feel that the law is essentially broken, and that the framework developed in the 1930s for creating unions is failing workers. The union density rate in the United States is hovering near a historic low, as only 10.8% of workers belong to a union. Democrats are pushing for sweeping changes to the law through the Protecting the Right to Organize Act, but right now it appears to have slim chances of passing the Senate.
Celine McNicholas, labor counsel at the Economic Policy Institute, said the NLRB can change the landscape for workers’ bargaining power only so much within the current system.
But even in its limited capacities, McNicholas said the direction of the labor board affects workers all across the country. She pointed to the Trump board’s memo on excluding Uber’s tens of thousands of drivers from collective bargaining law.
“There are certain things the agency can do that make a great deal of difference,” she said. “They can certainly look for ways, when those cases present themselves, to either uplift workers’ rights or really decimate them.”
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