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Op-Ed | The American Prospect | June 23, 2022

President Biden’s Best Agency Is Starved for Cash

Government CapacityIndependent AgenciesLaborNLRB
President Biden’s Best Agency Is Starved for Cash

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Two months after Ithaca, New York, became the first city to unionize all of its Starbucks locations, Starbucks announced a dramatic alteration to its business plan for the city: It was closing a shop with one week’s notice. The coffee leviathan stated the store was closing due to “efficiency” concerns and would not guarantee new jobs for the location’s workers.

The closing of the store was just one attack out of many in an unprecedented battle for unionization sweeping Amazon warehouses in New York and Starbucks drive-throughs in California. Workers have momentum, but the challenges they face are stiff indeed. Chronic underfunding at the National Labor Relations Board (NLRB), which is tasked with taking on anti-labor retaliation, and the probable impending Democratic midterm wipeout, might make American labor law virtually a dead letter. Democrats must pass a large increase in the agency’s funding in upcoming budget negotiations to protect the rights of American workers.

Faced with a new wave of labor activism, large corporations like Starbucks, Amazon, and Apple are furiously fighting back. This often happens through merciless union-busting law and consultancy firms. Starbucks, for instance, hired corporate labor and employment law firm Littler Mendelson, which deployed tactics to delay union certification elections, force employees to attend captive-audience meetings and be deluged with anti-union propaganda, and fire activist employees. The company has even gone as far as allegedly threatening to remove health-affirming care for trans baristas if they unionize. (This kind of open threat is not allowed under the National Labor Relations Act, and indeed the NLRB has accused Starbucks of hundreds of labor law violations.)

Starbucks organizers have their work cut out for them: The food service industry has the lowest unionization rate of all industries, with just 3.1 percent of workers unionized.

Despite the growing threats from management targeting workers, the wave of card checks and votes has found an ally in the Biden administration. As the Prospect has documented, the days of the Trumpist NLRB are far gone. The general counsel’s office is leading an unprecedented effort advocating for workers’ right to organize fair elections. General Counsel Jennifer Abruzzo has urged the NLRB to overturn precedent set during the Trump era, make captive-audience meetings an unfair labor practice, and uphold immigrant workers’ rights.

But even with such a fearsome leader at the helm, there’s no escaping the fact that the NLRB is totally outmatched by the corporate sector resource-wise. Because corporations only have to reveal direct interactions between anti-union actors and employees, they are not required to disclose how much they pay employer-side law firms, like Littler, that charge higher rates than consultants. Some anti-union consultants charge $3,200 a day, with employers spending some $340 million on union avoidance consultants yearly. At the same time, for nine years running, the NLRB has received the same yearly congressional appropriation of $274.2 million—worth less every year thanks to inflation, and some $65 million less than what employers spend on consultants. Since the 2002 fiscal year, NLRB staffing levels have dropped 39 percent and field staffing has shrunk by 50 percent.

The role in-house lawyers play in union-busting also cannot be ignored. In reaction to a flurry of failed anti-union campaigns, Starbucks began searching for an in-house labor lawyer for the first time. In the 1980s, the use of in-house lawyers by large corporations increased just as union rates sharply declined. Management-side law firms and in-house counsels also work together on union negotiations.

In NLRB regional offices, where casework originates, staffing levels are abysmal. With a deficit in personnel, the NLRB cannot protect unionized workers from employer retaliation. NLRB regional offices in Buffalo, Cincinnati, St. Louis, New Orleans, and Los Angeles do not have regional attorneys. In Buffalo, the first city to see a Starbucks location unionize, four out of five executive positions in the regional NLRB office are vacant.

The agency, like the IRS, is a casualty of the hyper-politicization of the federal budget that started after Republicans won control of the House in 2010 and waged scorched-earth political war on the Obama administration. One strategy the GOP used has been slash-and-burn budget tactics against any agency impeding their corporatist agenda. If the NLRB is starved of resources, it will struggle to punish corporate lawbreakers. Then if they win the presidency, the party dismantles it from the inside—in 2018, the Trump-appointed NLRB general counsel Peter Robb implemented a hiring freeze of new attorneys, and also offered employed NLRB lawyers massive exit bonuses, reducing the army of litigators going head-to-head with abusive corporations.

It’s not all bad, however. Unlike other agencies serving a regulatory function, like the SEC and the FTC, the NLRB does not have a terrible revolving-door problem. While some former labor attorneys do revolve out into major management-side firms like Littler and Jackson Lewis, there’s much more money to be had in intellectual-property and financial law. That means that for the most part, NLRB attorneys represent pro-labor positions—and that’s why Republicans hate it so much.

In November, Republicans will likely once again seize control of at least one chamber of Congress, opening the door for endless attacks on the NLRB’s budget and operations. Through congressional hearings, Republicans can subpoena NLRB internal communications, creating a culture of paranoia at the Board and restricting their ability to communicate effectively about pro-labor measures without fear of GOP reprisals. Perhaps more important is the sheer amount of resources congressional hearings suck up in an already underfunded and stretched-thin agency: Attorneys and staff would be forced to dedicate precious time to responding to baseless Republican attacks instead of adjudicating labor disputes.

Workers United, the union representing Starbucks workers, has filed at least 175 unfair labor practice complaints against Starbucks to the National Labor Relations Board. With the biggest organizing wave in decades in progress, and a concomitant surge of illegal union-busting, the NLRB needs more resources to carry out its legal duties to protect workers’ right to organize.

For next year’s budget, the White House proposed a $319 million NLRB budget. The NLRB has stated that this proposal will “start modernizing the Agency’s technology infrastructure, but will not fully address staffing needs.” In Congress, 148 House members and 40 senators, along with unions such as the International Association of Machinists and Aerospace Workers (IAM), have proposed a $368 million NLRB budget. This sum—a comparative pittance in the massive federal budget—is wholly justified. The NLRB should have enough funds to adapt to the greater needs of today, especially as health-related concerns remain due to the pandemic. For example, with its current budget the NLRB is unable to implement electronic elections, which are efficient, safe, and save taxpayer money.

Holding the line on funding for worker protections is not only good politics and good policy; it is time-sensitive. The next omnibus spending bill will likely set an inflation-adjusted high-water mark for the NLRB, should Democrats lose one or both branches of Congress. Labor advocates need to focus on giving Democrats a spine in upcoming negotiations over spending in fiscal year 2023, the deadline for which is October 1—just a few months away.

President Biden has said that “the middle class built this country and unions built the middle class.” For the administration to go further than pro-labor rhetoric and actually produce results, the NLRB must receive the capacity to address workers’ nationwide calls for help before Republicans seize Congress and use it to destroy the momentum of what has rapidly become Biden’s most effective agency.

Image: “Starbucks Workers Rally and March” by Elliot Stoller is licensed C BY 2.0.

Government CapacityIndependent AgenciesLaborNLRB

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