Rep. Perry wanted to slash the NLRB budget, even as the agency deals with a boom in organizing

President Joe Biden’s support for labor unions will likely give fuel in 2024 to the union revival of the past few years.

By: and - December 10, 2023 6:00 am

President Joe Biden addresses union workers at Sheet Metal Workers Local 19 on September 4, 2023 in Philadelphia, Pennsylvania. (Photo by Mark Makela/Getty Images)

During last month’s budget showdown in Congress, U.S. Rep. Scott Perry (R-10th District) introduced an amendment that would have gutted funding for the National Labor Relations Board (NLRB), a federal agency tasked with protecting workers’ right to organize and improve conditions in the workplace.

Perry called the NLRB “taxpayer-funded activists” and said the Biden administration’s “radical agenda” at the agency was out of touch with the American people. 

“The National Labor Relations Board is supposed to act to prevent and remedy unfair labor practices committed by private sector employers and unions,” Perry said. “Unfortunately, under the Biden administration, the NLRB has been filled with labor activists who seek only to empower union bosses at the expense of employees, employers and consumers.”

Democrats charge it’s just the latest salvo in an ongoing fight by the GOP to hobble the NLRB amid a new wave of interest in organizing among workers. 

“The Republican war on union workers and the union way of life continues,” U.S. Rep. Chris Deluzio (D-17th District) told the Capital-Star. “They are once again showing us who they really are: Bag men for big corporations, trying to screw over workers, shred worker protections, and starve the institutions like the NLRB so big business can keep union busting and breaking the law.”

The NLRB, Perry said during his floor speech, “is running amok: too much time on their hands, too many resources.”

Rep. Scott Perry talking to reporters at the Capitol Sept. 19, 2023 (Jennifer Shutt/ States Newsroom)

In fact, at the end of 2022, the NLRB received a budget increase of $25 million, but it was the first such boost the agency had received since 2014. Its budget had been stagnant at $274 million since that time. And the agency’s workload has increased significantly over the past several years. 

The NLRB’s  primary functions are to protect workers’ right to organize and address unfair labor practices by both private sector employers and unions. It certifies employees’ petitions to unionize, investigates violations of the National Labor Relations Act, and when employers and employees aren’t able to come to settlements in cases of unfair labor practices, the NLRB’s administrative law judges may adjudicate the cases in court.

“For nearly a decade, Congress eviscerated NLRB operations by freezing funding levels,” Michael Bilik, legislative co-chair for the NLRB Union, and an NLRB trial attorney in New York told the Capital-Star. “Almost half of our regional office staff vanished as a result. As hard-working Americans across the country have sought to exercise their right to organize, our caseloads have skyrocketed by 30% in just two years. Simply put — our embattled, overworked and hollowed-out staffs already lack the resources to effectively enforce the law.”

And contrary to Perry’s assertion that the agency is out of touch, union organizing is hardly unpopular. A September report from the Keystone Research Center, a nonprofit organization focused on labor policy, found that labor union memberships increased by 200,000 members in 2022 nationwide, and by 23,000 in Pennsylvania, including 19,000 in the private sector. 

That same report found that unions filed 53% more union certification petitions with the NLRB in fiscal year 2022 than in fiscal year 2021. When the United Auto Workers struck earlier this year, an October poll by the AP-NORC found that 36% of those polled sided with the striking workers, compared to 9% who sided just with the automakers (26% sympathized with both sides, and 27% sympathized with neither side).

“For far too long, corporatist politicians have defunded the National Labor Relations Board–making it harder for workers to unionize or exercise their rights and making it easier for greedy CEOs to union bust, mistreat, and abuse workers without accountability,” U.S. Rep. Summer Lee (D-12th District) told the Capital-Star. “This latest move by Scott Perry proves that Republicans are firmly on the side of the ultra-wealthy instead of working people.”

Perry’s amendment was ultimately voted down, 257 to 169, and he did not reply to multiple requests for comment. But his position on the NLRB is to the right of most members of his party; 47 Republicans voted against his amendment, including three Republicans in Pennsylvania’s congressional delegation.

Rep. Brian Fitzpatrick (R-1st District), was one of the three who voted no, and is generally viewed as more of an ally to labor unions than others in his caucus, particularly Perry. 

“I have always been a firm believer in fair collective bargaining,” Fitzpatrick told the Capital-Star. “The National Labor Relations Board requires adequate funding to ensure American workers are able to exercise the right to organize. I am opposed to cuts that would cripple this agency and prevent it from fulfilling its Congressionally authorized mission.”

U.S. Sen. Bob Casey has repeatedly pushed back against cuts to the NLRB; last December, Casey co-authored a letter to Senate leadership urging a funding increase for the agency, expressing “grave concern over the ongoing funding crisis at the NLRB.” Casey noted at the time that even though the agency’s appropriation had not increased since 2014, the number of cases pending before the board had risen 28% in that time. 

Sen. Bob Casey. (File photo by Jemal Countess/Getty Images for JDRF)

“The right of workers to organize is fundamental, but that right only helps workers if the NLRB is able to enforce it,” Casey told the Capital-Star. “Last year, I fought to secure long overdue resources for the agency after years of chronic underfunding had stretched its staff thin and put its mission of protecting the right to organize at risk. At such a critical moment for the labor movement in this country, we cannot allow Republicans to turn back the clock and cut the NLRB’s funding once again.

The immediate crisis Casey warned about was averted when Congress approved the $25 million boost to the agency’s budget, but the funding increase didn’t solve all the NLRB’s problems. 

“While the bump in our FY23 funding was essential in averting furloughs, the NLRB is still drastically underfunded,” NLRB General Counsel Jennifer Abruzzo said in a statement at the time.

Michael M. Oswalt is a professor of law at Wayne State University Law School in Detroit who studies labor law. He told the Capital-Star in an interview that efforts to cut funding or even hold funding steady for the NLRB are, in effect, attempts to shut down the law. 

“They are attempts to shut down unions and to shut down workers who have faced labor law illegalities at work who want to find justice,” Oswalt said. “Any attempts to cut funding for the agency go directly to workers’ rights and workers’ justice because there’s simply no other game in town.”

That’s because if a worker is illegally fired, or an employer illegally threatens a worker for organizing or is spying on them, the worker can’t just hire a lawyer; the NLRB is their only option in those situations, Oswalt explained. 

‘The most pro-union president’

President Joe Biden, meanwhile, has made labor a centerpiece of his administration, casting himself as “the most pro-union president” ever. His stump speech includes the line “Wall Street didn’t build America, the middle class built America. And unions built the middle class.”

And Biden was the first sitting president to visit a union picket line, showing his support for striking United Auto Workers (UAW) members as they fought for a contract with Detroit Big Three automakers GM, Ford and Stellantis. 

Biden makes historic visit to metro Detroit picket line to rally with striking auto workers

 

“I told you when I ran for president I’d have your back, and I have,” Biden told an audience of union workers during a visit to Philadelphia on Labor Day. “There are a lot of politicians in this country who don’t know how to say the word ‘union.’ I’m proud to say the word union and I’m proud to be the most pro-union president … I make no bones about that.”

Oswalt says the most tangible evidence of the president’s desire to be remembered as the most pro-union president in history are his appointments to the NLRB. 

“This NLRB has expanded employee protections for speech for protest and for unionization. They have tried to make the organizing process more efficient,” he said. “They have tried to involve federal courts to get faster justice for illegally fired workers. And you know, I truly believe and I think the President believes that it helps organizing, it helps workers when workers think that the government has their back.” 

And last December, Oswalt noted, the NLRB made a significant ruling in the case of a software company that the board found had illegally fired workers who tried to unionize. 

The board ruled that when companies commit an unfair labor practice (ULP), they’re responsible not only for paying lost wages and benefits to affected workers, but for paying “consequential” damages as well: Costs the employee incurs because they’ve lost their income. So for example, if a worker loses their health insurance and has to pay out of pocket for insurance coverage, the employer who committed ULP would be liable for paying for the increase in the worker’s healthcare costs. 

“For the first time in over 90 years, it was a way to hold employers just partially to account for their illegal conduct,” Oswalt said. “And, presumably, no congressman would defend employers who have actually illegally fired workers for organizing.”

The UAW ultimately realized some significant wins as a result of its six-week strike, which drew not only Biden to its picket lines, but politicians including U.S. Sens. John Fetterman (D-Pa.) and Bernie Sanders (I-Vt.). 

The PRO Act

Biden has also touted the Protecting the Right to Organize, or PRO, Act, which would amend the National Labor Relations Act to make it easier for workers to organize, and significantly stiffen penalties against employers who violate it.  Under the PRO Act, employers who know about labor violations but refuse to address them could be held liable.

The PRO Act  has failed to pass Congress several times, something Perry pointed out when he introduced his amendment, accusing the Biden administration of trying to pass the act “by fiat.” 

Austen Bannan, a labor policy fellow for the conservative think tank Americans for Prosperity (AFP), told the Capital-Star in an interview that it was opposed to the PRO Act, which he said gives “favoritism” to unions. It would implement what’s known as an ABC test, which determines whether a worker is an employee entitled to benefits or an independent contractor, which Bannan said would potentially take away flexible work schedules from freelancers. Proponents of ABC tests argue they’re necessary to prevent employers from exploiting freelance and gig workers.

AFP backs the Employee Rights Act (ERA), proposed by U.S. Sen Tim Scott (R-SC) and U.S. Rep. Rick Allen (R-Ga.), as a counter to the ProAct, Bannan added. 

“It would protect secret ballot elections, it would protect information, and it would protect independent contracting more with a status quo the way the tests currently are,” Bannan said. 

Looking ahead to 2024

Biden’s 2024 budget request seeks $376 million for the NLRB, which seems unlikely to win approval in the GOP-controlled House. An NLRB spokesperson declined to comment, but pointed to a fact sheet with details of how the agency’s workload, and demand for its services, has increased in recent years: Between fiscal year 2022 and 2023, the number of cases filed with the agency increased 10%, to 22,448, the highest number of cases filed since fiscal year 2016.

That uptick included more unfair labor practice charges, which were up 10% across its 48 field offices in 2023, the agency said, and 3% more union representation petitions were filed. 

During the same period, 2,594 union representation petitions were filed—a 3% increase over FY 2022. That’s leveled off somewhat from the 53% increase in representation petitions filed between fiscal year 2021 and fiscal year 2022. And even though staffing levels remained static, the board processed more cases in fiscal 2023 compared to 2022. 

“Dedicated NLRB employees have continued working hard to increase the Board’s productivity, but the continuing surge in case intake has again increased our year-end backlog,” NLRB chairman Lauren McFerran said in a statement. “Although the Agency tremendously appreciated the $25 million increase in funding for FY 2023, and used every extra dollar to address critical staffing vacancies and infrastructure needs, additional resources are necessary to enable the Board to expand staffing capacity and continue processing cases more efficiently.” 

            

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Kim Lyons
Kim Lyons

Kim Lyons is a veteran western Pennsylvania journalist who has covered people and trends in politics and business for local and national publications. Follow her on Threads @social_kimly

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John Cole
John Cole

John Cole is a journalist based in Philadelphia. He's worked for various outlets such as The Northeast Times, PoliticsPA, and PCN. In these previous roles, he covered a wide range of topics from local civic association meetings to races across the commonwealth. He earned a degree in journalism from Temple University.

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