Why this presidential election matters to WSNA union members

Presidential Appointments to the National Labor Relations Board (NLRB)

The President appoints the Members and General Counsel of the National Labor Relations Board (NLRB). The NLRB is the agency responsible for interpreting and enforcing the National Labor Relations Act (NLRA), the main federal law that establishes rights for unions (and individual employees) and private sector employers. The President appoints both the NLRB’s Members and its General Counsel (GC). These appointments play critical roles in enforcing unions’ and workers’ rights nationwide.

NLRB General Counsel: When an employer violates the rights established in the NLRA – for example, by disciplining union members or making changes without bargaining – unions like WSNA often file an unfair labor practice (ULP) charge with the NLRB, which formally asks the agency to investigate the violation and enforce the law. The General Counsel (GC) is responsible for investigating ULP charges and, if they believe a violation took place, acting as a “prosecutor” in a hearing against the employer in front of an Administrative Law Judge, who hears the evidence and decides whether the employer indeed violated the law.

NLRB Members: The NLRB’s Members are responsible for ensuring the NLRA is applied correctly when the GC brings charges against an employer at a hearing. If the employer, the union, or the GC thinks a hearing led to the wrong result, they can appeal the ALJ’s decision to the Board, whose Members review the case and decide whether it correctly applied the law.

Why it matters who the President appoints: Like prosecutors in criminal court, the GC can prioritize the parts of the NLRA they think it is particularly important to enforce. For example, the current GC of the NLRB has prioritized seeking faster enforcement processes using the court system and expanding the kinds of backpay and benefits workers can recover through NLRB proceedings, both of which help deter employers from violating the law in the future. Likewise, the Board can prioritize making updates to the rules and policies its Members believe will have the biggest impact on workers’ rights. For example, the current Board streamlined the process workers use to organize and vote to form a new union at their workplace, which shortened the time between when workers decide to start a union and when they actually get to the bargaining table.

During his term as President, Donald Trump appointed NLRB Members and a General Counsel who prioritized increasing employers’ rights and curtailing workers’ rights rather than expanding and enforcing them. His Board’s decisions rolled back members’ rights by making it more difficult to hold employers accountable, and his General Counsel used rules and regulations to slow investigations and elections and took away unions’ abilities to fight for members, which gave employers more opportunities to intimidate workers and scare them out of engaging in collective action.  In contrast, the Biden-Harris Administration has appointed worker-friendly Board Members whose decisions have restored workers’ rights and a General Counsel who has worked to make it easier for workers to advocate for one another efficiently and effectively, as well as applying meaningful remedies when employers act badly. Vice-president Harris will continue this trend.

Why the NLRB matters to WSNA members in public institutions/agencies: Although the NLRB’s actions directly impact private-sector employees, they can indirectly affect public employees as well. Federal labor precedents can have downstream consequences for public employees. In Washington state, the agency tasked with applying the law to public employees is the Public Employment Relations Commission (PERC). Its Commissioners apply Washington’s state-level labor laws, many of which are based on the NLRA and are designed to give state employees the same rights that private employees have under federal law. Though PERC Commissioners interpret and apply our state’s labor laws when they issue decisions, if there is a gap in state law – for instance, if a novel situation arises and PERC has never had to decide the issue before – Commissioners can look to federal labor law for guidance on how to proceed. That means appointments to the NLRB can impact public employees as well; if a President appoints NLRB Members who prioritize narrowing workers’ rights, it could lead to harmful results for public employees.

Appointment of Federal Judges

The President also appoints federal judges to lifetime positions on the bench, where they play a significant role in determining how state and federal labor laws apply to both private and public employees. Judicial appointments are critical to sustaining union rights: employers are challenging pro-worker NLRB decisions in federal courts and are often winning. President Trump’s appointments – especially to the Supreme Court – have consistently issued decisions that restrict workers’ rights to organize and to enforce their contracts and their rights.

One major example: In 2018, Supreme Court issued its decision in Janus v. AFSCME. In that case, the Supreme Court decided that unions could no longer require public employees to pay dues or fees, which threatened to weaken those employees’ power by making it more difficult for their bargaining representatives to provide them with the resources they need to enforce their contracts. The Supreme Court decided Janus by a one-vote margin; the deciding vote was cast by Justice Neil Gorsuch, whom President Trump had appointed to the Court the previous year.

Other Trump-appointed judges have issued decisions that undermine public employees’ rights to bargain and rolled back the Biden-Harris administration’s attempts to halt the use of unfair noncompete policies, which would have prohibited employers from using coercive agreements or training repayment requirements to restrict nurses’ rights to change jobs. In contrast, the Biden-Harris administration appointed worker advocates to the federal bench, including worker-side attorneys from Washington state.

Unlike appointments to the NLRB, federal judges (including Supreme Court justices) serve lifetime appointments, so the impact of appointing pro-worker or anti-worker judges will be felt for decades.

President’s Veto Power

The President has the power to veto legislation after it passes the Senate and the House of Representatives. As President, Donald Trump promised to veto the Protecting the Right to Organize (PRO) Act, a law that, if enacted, will help to even the playing field between labor unions and employers. Vice-president Harris has pledged to sign the PRO Act if it reaches her desk.