President Biden promised to be the most pro-union, pro-worker President in history.  One way he sought to achieve this goal was through his appointments to the National Labor Relations Board.  For a little over three years, from September 2021 until December 16, 2024, Biden’s appointees formed a majority on the NLRB.  Despite the talk about the Republicans becoming the workers’ party, labor relations have been so polarized in this country that it feels like each Administration’s appointees are just running on a treadmill, undoing the actions of the previous Administration.  That was certainly the case for Biden’s appointees, as they spent much time and energy simply undoing the anti-worker actions of the first Trump NLRB.  In an apparent effort to bolster the odds that these reversals would survive circuit court review, the decisions reversing Trump Board rulings tended to be quite lengthy.  The time spent on those decisions came at the expense of more routine cases – the number of decisions the Biden Board issued was markedly lower than previous Boards.  In addition, the Board’s slow pace meant that some of its most significant decisions came too late to make any difference.

You can’t assess Biden’s NLRB without first acknowledging the damage done by  Trump’s appointees to the NLRB.  The Biden Board overruled twelve separate decisions by the Trump Board, and it issued three separate rules that reversed initiatives of the Trump Board.  I don’t have the space to discuss all twelve Trump Board decisions that Biden’s appointees overruled.  I wrote about one of them, Bexar County Performing Arts Center, here, describing it as maybe the worst of all of the Trump NLRB decisions.  In that case, the Trump Board treated off-duty contracted workers as trespassers when they returned to their worksite to distribute leaflets.  The other eleven Trump-era decisions similarly took rights away from workers, made it harder for them to organize, or granted privileges to management.  Sadly, there are a number of equally bad Trump-era decisions that the Biden Board did not have an opportunity to overrule.

Even before Trump took office in January 2017, no worker advocate would say that the playing field between workers and bosses was level.  So, it’s depressing that Biden’s appointees had to work so hard just to try to return the law to that state.  In a few instances, Biden’s appointees did go farther to break new ground, but so far one of those initiatives has floundered in the courts.  In Thryv, the Biden Board tried to provide more meaningful remedies for workers who are fired illegally.  They held that instead of being limited to recovering backpay, workers should be able to recover for the foreseeable consequences of losing their jobs, such as paying interest on credit cards or penalties for withdrawing money from a 401k plan.  Unfortunately, the Third Circuit recently ruled that these remedies exceed the Board’s authority to order “such affirmative action including reinstatement of employees with or without backpay, as will effectuate the policies of this Act.”  Another groundbreaking decision was Cemex, where the Board held that if a union has garnered majority support and the employer refuses to recognize the union without an election, the remedy for an employer’s unfair labor practices committed in the run-up to the election will be an order requiring the employer to recognize the union.  It seems likely that Cemex has discouraged employers from engaging in illegal anti-union conduct, but it’s hard to tell how much impact it has actually had.

Two of the Biden Board’s biggest decisions were issued in the final days of Chairman McFerran’s term, so those may be reversed before they have any impact.  In Amazon.com Services LLC, the Board held that an employer violates its workers’ rights when it compels them to attend captive audience meetings.  Employers routinely hold these meetings when workers start to organize, so if this ruling is not reversed by Trump’s NLRB, it would be a significant game changer.  Another Biden Board decision issued in McFerran’s final days, Siren Retail Corp., outlawed a common employer practice of threatening workers that they would not be able to bring their grievances directly to their supervisors if they obtain union representation.

One of the most disappointing aspects of the Biden Board has been its difficulty in getting decisions out the door.  I assume this is at least somewhat due to the sole Republican Board Member, Marvin Kaplan, slow-walking his dissents.  But the decline in published decisions from the last two years of the Obama Administration is striking.  In 2015 and 2016, the Board issued 285 and 268 decisions respectively.  In 2019 and 2020, the Trump Board issued 242 and 205 decisions. By contrast, in 2023 and 2024, the Biden Board issued 129 and 154 decisions.  (These numbers are for calendar years, not the Board’s fiscal years.) One case that the Board decided on Chairman McFerran’s final day illustrates how dysfunctional the NLRB has become in addressing routine violations by employers.   Amentum Services was a very simple case.  The allegations were that a supervisor had threatened one worker that his job might be in danger because he had filed a grievance, and the employer retaliated against the worker who filed the grievance by requiring him and his co-worker to change their schedules.  The events in this case took place in April 2021.  By the time the Administrative Law Judge issued his decision in May 2022, the employer had already undone the schedule change.  This meant that the only remedy would be an order that the employer post a notice and refrain from threatening or retaliating against workers for filing grievances.  In other words, essentially nothing was at stake, particularly since the employer insisted it had no objection to the worker filing a grievance.  There also wasn’t a significant legal principle at issue – instead the case turned primarily on credibility determinations.  Despite the low stakes, it took two-and-a-half years for the Board to issue its decision.  The majority opinion and the dissent had a combined 46 footnotes, and I shudder to think about the number of person-hours expended by Board staff.

The Board’s long delay in ruling on a minor issue in Amentum was hardly an aberration.  In List Industries, which was also decided at the end of Chairman McFerran’s term, there was broad agreement among the three Board Members that the employer committed a number of serious unfair labor practices.  But, Member Kaplan dissented from his colleagues’ finding that the employer created an unlawful impression of surveillance.  Finding this additional unfair labor practice had very little practical effect, yet resolving the impression of surveillance issue took two-and-a-half years.

Long delays at the NLRB are nothing new.  Back in 1999, the Second Circuit criticized the Board for issuing a decision four-and-a-half years after the ALJ decision, and reminded the Board that it “has a duty to act promptly in the discharge of its important functions.”  But, if President Biden wanted to be remembered as this country’s most pro-worker and pro-union President, one lesson he should have imparted to his appointees is that justice delayed is justice denied.