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Labor Board Plots Worker-Focused Outreach Push Backed by Biden

June 15, 2021, 8:04 PM

The Biden administration is seeking an influx of cash for the National Labor Relations Board to educate workers about their right to form a union—an effort that could prompt new organizing and is already drawing opposition from business lobbyists.

The president’s budget proposal for the 2022 fiscal year calls for $2.1 million to launch programs to inform workers about their rights under the National Labor Relations Act, including forming unions and requesting that an employer address workplace grievances.

While the proposal is less than 1% of the labor board’s total budget request, it represents a significant potential investment in outreach for a court-like agency that typically spends its money adjudicating disputes and overseeing union elections.

The proposal also involves an ideological divide in labor law. The type of outreach the board envisions could publicize aspects of federal law that allow workers to curtail employers’ power, including protections for speaking out about pay, safety conditions, and other issues—precisely why many businesses are opposed to the idea.

“It’s the one thing employers do not want employees to know,” said Anne Lofaso, a former NLRB attorney and labor law professor at West Virginia University.

The vast majority of U.S. workers don’t belong to a union, but the NLRA still protects their right to band together to advocate for change in the workplace—a fact most workers don’t realize, Lofaso said.

Business groups were able to fend off a scaled-down outreach effort during the Obama administration, but they may not fare as well this time, given President Joe Biden‘s pledge to have the most pro-union White House in history and the heightened awareness of workplace issues as a result of the Covid-19 pandemic. The administration already launched a task force aimed at promoting union organizing through a series of yet-to-be determined executive actions.

The future of Biden’s proposal depends first on congressional appropriators, who will have to decide whether to support it in spending legislation this summer.

The president’s budget calls for a 10% bump in overall funding for the labor board, the majority of which would be used to staff up depleted regional offices that take in unfair labor practice charges and oversee union elections. Overall funding for the NLRB, and the agency’s plans for it, could be altered if Congress fails to pass an appropriations measure covering the labor board.

Acting NLRB General Counsel Peter Sung Ohr—who would be in charge of overseeing outreach efforts until a permanent nominee is confirmed—already rescinded a Trump-era order preventing NLRB employees from speaking to the public, and has started hiring field staff.

Ohr said in a recent interview he would aim to educate workers on parts of the NLRA that don’t directly have to do with unions. In addition to unionizing, the NLRA guarantees workers’ right to collectively advocate for better working conditions, higher wages, and other workplace issues that fall under a legal category known as protected concerted activity.

“On a substantive aspect, it really is the Section 7 rights under the Act—employees’ fundamental right at the workplace, whether it be safety measures, pay, and, obviously, what happened with the pandemic, we know about all the safety- and health-related issues,” Ohr said.

Protected Concerted Activity

In the long run, according to Ohr, educating workers about their rights may prompt more of them to join unions, though he said that’s not his goal.

“When workers end up engaging in those types of activities, knowing that is protected, that could certainly lead to greater protected concerted activity,” Ohr added. “They may stop at that point, whatever issues were resolved, but then it could also be a precursor to formal organizing efforts with labor organizations.”

Vice President Kamala Harris (right) and Labor Secretary Marty Walsh take part in a meeting of the White House Task Force on Worker Organizing and Empowerment on May 13.
Photographer: Anna Moneymaker/Getty Images

Labor-focused appropriations panels in Congress have yet to release draft spending bills for fiscal 2022, but business groups are already pushing back.

Glenn Spencer, senior vice president of the employment policy division at the U.S. Chamber of Commerce, said such outreach seeks to distract from the fact that the NLRB is becoming less relevant as the share of union workers in the U.S. workforce gets smaller.

The NLRB saw a 28% drop in unfair labor practice filings from 2011-2020, and representation petitions fell by 32%. Last year, 6.3% of private sector workers belonged to a union, a significant decline from nearly 17% in 1983.

“The workload doesn’t seem to justify an increase,” Spencer said, referring to overall funding for the NLRB. “In fact, it probably justifies a decrease.”

Employer groups have successfully thwarted NLRB worker educational efforts in the past. In 2014, the board abandoned a rule that would have required employers to post notices of workers’ rights under the NLRA after business advocates successfully sued to block the measure in federal court.

“The reaction from employers was quite harsh,” said Jeffrey Hirsch, a former board attorney and labor law professor at the University of North Carolina. “They really didn’t like it, which tells you something.”

Field Support

The proposed $2.1 million initiative would fund about 13 new positions in field offices, Ohr said. Much of their mission would involve building relationships with other groups—from small business associations to foreign consulates—to educate business owners, low-income workers, immigrants, and others who might be unfamiliar with the NLRA.

Biden has said he agrees with the interpretation of the NLRA that most liberals favor, which holds that the law exists to explicitly support organizing.

“You should all remember the National Labor Relations Act didn’t just say that unions are allowed to exist; it said we should encourage unions,” Biden said in taped remarks in February, ahead of the high-profile union vote at the Amazon.com Inc warehouse in Bessemer, Ala.

It may ultimately be more advantageous—and cheaper—for employers to hear out workers’ concerns, said Lofaso, the West Virginia University law professor.

“If you’re ideologically opposed to that, you will pay money to prevent that, even if it’s cheaper to actually listen to workers,” Lofaso said. “Listening to workers is so cheap because you never have to give in.”

To contact the reporter on this story: Ian Kullgren in Washington at ikullgren@bloombergindustry.com

To contact the editors responsible for this story: John Lauinger at jlauinger@bloomberglaw.com; Travis Tritten at ttritten@bgov.com

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