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New money from Congress may avert labor crisis at national labor board

A $25 million budget increase sets the cash-strapped National Labor Relations Board up to deliver on Biden’s pro-union agenda

The sun sets on the Capitol dome on Nov. 14. (Jabin Botsford/The Washington Post)
correction

This article originally misstated the terms of a proposed new policy on remote work for the National Labor Relations Board. The policy would allow staffers to work from home up to six days every two weeks, not require them to work in the office six days every two weeks.

Congress is poised to boost funding for the federal agency that protects workers’ rights to organize, at least temporarily averting a staffing crisis that has hampered the Biden administration’s ability to deliver on its pro-union agenda — and that also threatened to cause prolonged labor unrest at the agency.

Early Tuesday morning, lawmakers announced a $1.7 trillion spending package that adds $25 million of new funding for the National Labor Relations Board to prevent furloughs at the cash-strapped agency, bringing its budget up to $299 million.

The funding boost came after the agency’s own disgruntled union and Congressional Progressive Caucus Democrats, backed by chair Pramila Jayapal (D-Wash.), pleaded with leaders on Capitol Hill for increased funding as part of an exchange between parties as Republicans pushed for a major increase in defense spending.

The new funding will likely quell some of the turmoil at the NLRB by preventing furloughs, but it remains unclear whether the agency will be able to fill hundreds of vacated jobs that have left the labor board badly understaffed. The agency and its workers, meanwhile, remain locked in a battle over telework that mirrors those they are charged with refereeing nationwide.

“You don’t get a lot of wins in this business. This is definitely something to feel good about” said Michael Bilik, an NLRB field attorney in New York City and a leader in the agency’s union. “But it’s not nearly enough money. It’s the least they could do to keep the lights on.”

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The labor watchdog agency’s budget has been frozen at $274.2 million since 2014, a decline from its peak of $283.4 million in 2010. It has lost at least 520 staffers, or 30 percent of its workforce, since 2010, as vacated positions have gone unfilled. Unions, meanwhile, have seen a notable surge in popularity since the pandemic began, with a 53 percent increase in union election filings this fiscal year compared with last year, and workers voting to unionize for the first time at employers such as Amazon, Apple, Chipotle and Trader Joe’s. (Amazon founder Jeff Bezos owns The Washington Post.)

The NLRB declined to comment on the new funding on Tuesday. Jennifer Abruzzo, the agency’s general counsel, said in a statement on Monday that the agency was in complete agreement with its union “on the urgent need for additional resources” to ensure that it can fulfill its mandate.

Labor leaders widely acknowledge that the agency needs to be able to move fast to investigate charges and get workers relief because union elections happen quickly and retaliation can have an immediate chilling effect on organizing. Several agency attorneys said that under current caseload levels, many staffers have to postpone investigations of unfair labor practice charges that workers file when they believe they’ve been illegally fired or had their labor rights otherwise violated. They noted that in cities like New York, where attorneys are assigned complex, high-profile cases such as the contested unionization effort at an Amazon warehouse in Staten Island, other, less flashy cases involving the most vulnerable workers fall to the wayside.

“We are stretched thin,” said Noor Alam, an NLRB field attorney in Denver. “I have cases that I know are really important on union campaigns where lead organizers have been fired and [union] elections are pending, but I’ve been forced to put things that can’t wait on the back burner. Justice is being delayed.”

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The Biden administration, which has touted its commitment to the labor movement and unions, has recently found itself in a delicate position with labor after pushing Congress to impose a deal rejected by many railroad workers that did not include paid sick days to avert a national rail strike.

The administration had asked Congress to approve a $45 million budget increase for the labor board, up to $319.4 million in the 2023 budget. A funding increase for the NLRB was dropped from this year’s budget despite Democratic control of Congress, as were pro-labor provisions in reconciliation bills in 2022 and 2021.

“I would call it a great victory under the circumstances,” said Larry Cohen, the former president of the Communications Workers of America. “The [agency] will have a much better chance to support the tens of thousands of workers who are organizing across the country.” Cohen is now the chair of Our Revolution, a Bernie Sanders-backed group that has lobbied Congress during the lame-duck period to boost funding for the NLRB.

Once Republicans take control of the House in January, the agency is likely to see its budget frozen until 2025, since the GOP is unlikely to go along with attempts to increase it. Meanwhile, conservative lawmakers, who say the labor board has overstepped its authority, have argued against increasing its funding and are preparing to launch oversight hearings next year.

Labor leaders have been thrilled with Biden’s move to install Abruzzo as the top lawyer at the NLRB. Abruzzo, widely praised by union organizers as the most visionary leader of the agency in generations, has recommended banning mandatory anti-union meetings and recently pushed the agency to impose expanded penalties on employers who illegally fire union organizers.

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But the funding crisis exposed tensions between NLRB staffers and the agency’s management, including Abruzzo, over union contract negotiations.

The labor board’s deputy general counsel sent an agency-wide email in November, warning employees of potential cuts if they did not receive a budget increase from Congress before the end of the year. At least 125 members of the NLRB’s union responded with reply-all messages, expressing frustrations about the agency’s work-from-home policy set to expire this Friday, Dec. 23. A proposed new policy would allow staff to work from home up to six days every two weeks but would require them to come in for a number of common legal proceedings, such as taking affidavits from witnesses and conducting union elections, a mandate that staffers said further disrupts their work-life balance.

One trial attorney in D.C., John Mickley, who two former colleagues said was widely respected, announced in November that he was quitting his job because of the agency’s position on telework. “You don’t control the congressional appropriations that would allow you to hire, but you do control our conditions of employment,” Mickley wrote in his email to management. “Seeing you fail to make these concessions pushed me to the breaking point. Bargaining positions matter.”

“What we are asking for is a lifeboat and a ration,” wrote Kristin White, the agency’s sole employee in Alaska, where union representation cases roughly doubled last year. “Nihilism and despair will overwhelm the passion and commitment we share for the [National Labor Relations Act] and for the rights of workers. Our mission is too important to let that happen.”

On Dec. 8, 60 staffers from around the country arrived in Washington, many on one-day round trip flights from as far away as San Francisco and San Antonio, to rally outside the agency’s offices, protesting potential furloughs and telework policies. They held signs that read “NLRB: Pro-Employee on the Outside, Union Busting on the Inside!!!” and “Hypocrisy” next to a photo of general counsel Abruzzo superimposed on an image of Marie Antoinette.

Abruzzo said in a statement that the agency is committed to working with the union on reaching “a new collective bargaining agreement as soon as possible” that increases telework for NLRB employees beyond the plan that is slated to go into effect this week, while ensuring that the agency can “effectively provide the protections workers are guaranteed under the National Labor Relations Act.”

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The union says the current proposal of six days every two weeks would likely require staffers to commute to work far more often, due to low staffing levels and a number of additional policies that require in-person work.

“We should be setting an example in labor relations,” said Alam, the staff attorney in Denver. “This feels like same old hard bargain. It doesn’t make any sense to us.”

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