Voters Support Increased Funding for the National Labor Relations Board and Vigorous Enforcement of Federal Labor Law
By Anika Dandekar and Matt Mazewski
The resurgence of labor organizing over the past couple of years has brought notable victories for many American workers, but the labor movement nevertheless continues to face formidable headwinds. Beyond the fierce resistance to unionization on the part of many employers, a funding crisis at the National Labor Relations Board (NLRB), the agency responsible for administering federal labor law, has threatened to undermine the momentum behind the current wave of worker collective action.
A new national survey by Data for Progress of 1,354 voters finds broad support for increasing the NLRB’s budget in the next fiscal year. While an additional $25 million appropriation included in the omnibus budget bill released this week is less than what the board’s leaders, allies in Congress, and the labor movement had called for, these additional resources will nevertheless be vital to preventing staff furloughs and ensuring continued capacity to efficiently process new union representation petitions and adjudicate charges of unfair labor practices.
We also find that voters are in favor of proposals that would allow the NLRB to assess civil fines when employers violate labor law, which could potentially provide it with a sustainable, new funding source as well as more effectively deter employer wrongdoing. Moreover, our polling shows the popularity of efforts by the board to issue a robust, new “joint employer standard” and by the agency’s general counsel to crack down on employer surveillance of workers on the job.
A Majority of Voters Support Increasing the NLRB’s Budget
Since fiscal year 2014, the NLRB has received the same nominal appropriation of $274.2 million annually from Congress. In a letter last month to top House and Senate appropriators, NLRB Chair Lauren McFerran and general counsel Jennifer Abruzzo explained that this amounts to a 25 percent reduction over the past nine years once inflation is taken into account. Although the agency has already implemented a hiring freeze, they warned that furloughs of some of the NLRB’s roughly 1,200-member staff would soon become necessary absent additional resources, jeopardizing the ability to quickly process representation petitions and rule on unfair labor practice charges.
This past spring, over 100 members of the House released a letter calling for the NLRB’s funding to be increased to at least $368 million per year, while the NLRB itself requested $319.4 million in a formal budget request in March. A number of lawmakers and unions sounded the alarm about the funding crunch and pushed for it to be addressed in any year-end budget agreement. Thankfully, the omnibus budget bill that Congress is aiming to pass before the end of this session begins to address the shortfall by including a total NLRB appropriation for the next fiscal year of $299.2 million, or a $25-million-per-year increase above current levels.
We find that a majority of voters (57 percent) support increasing the NLRB’s funding in 2023, including a majority of Democrats (73 percent) and Independents (54 percent), as well as a plurality of Republicans (44 percent).
Voters Across Party Lines Overwhelmingly Favor Civil Fines for Unfair Labor Practices
Under the National Labor Relations Act (NLRA), the NLRB lacks the authority to issue monetary penalties or fines for unfair labor practices. Instead, the board is limited to remedies such as requiring reinstatement of workers fired for engaging in union organizing or mandating employers to post notices that they will comply with the law going forward.
The Protecting the Right to Organize (PRO) Act, which passed the House in March 2021, would for the first time authorize the NLRB to levy civil fines for unfair labor practices of up to $50,000 per violation, or $100,000 for repeat offenders. There was an effort to enact these fines through the reconciliation process after the PRO Act failed to move forward in the Senate, but although civil penalties were included in the Build Back Better Act approved by the House in November 2021, they were left out of the Inflation Reduction Act that became law earlier this year.
Voters support imposing fines for employers that have been found to violate labor laws by a +58-point margin. Over three-quarters of Democrats (83 percent), and more than two-thirds of both Independents (70 percent) and Republicans (71 percent) support these fines.
Some labor law experts have projected that allowing the NLRB to assess monetary fines could bring in tens of millions of dollars per year, potentially allowing lawmakers to create a new, dedicated revenue stream that would provide the NLRB with a sustainable source of funding for the long run and head off future budgetary crises.
Civil fines for labor violations could also be transformative from an enforcement perspective, and would likely help to curb the brazen and widespread retaliation against workers that often takes place in the context of organizing drives. MIT economist Anna Stansbury has estimated that the current penalties for such misconduct are so weak that the typical employer simply does not have much economic incentive to actually comply with federal labor law.
Voters Back the Board’s Efforts to Develop a Robust, New Joint Employer Standard
The current board is working to issue a new rule concerning the joint employer standard, which determines when two or more employers are all considered to be employers of a particular set of workers. How this is defined has important implications for when businesses can be required to recognize and bargain with a union of those workers or be held liable for unfair labor practices.
Under a new proposal unveiled in September, any employers that “share or codetermine those matters governing employees’ essential terms and conditions of employment” could be considered joint employers. For example, this could include a temp staffing agency and the corporation that it helps to staff, or fast food chain parent corporations and their local franchise owners. Under the Trump Administration, the Republican-appointed board had issued a joint employer rule that was favorable to big business, and the current NLRB majority now seeks to overturn it.
We find that a bipartisan plurality of voters (48 percent) support expanding the joint employer standard so that all relevant employers must bargain with a union; this includes 62 percent of Democrats, 41 percent of Independents, and 40 percent of Republicans.
Voters of All Party Affiliations Oppose Employer Surveillance of Workers
In recent years, especially with the greater prevalence of telework arrangements since the onset of the COVID-19 pandemic, many employers have increased their use of technologies designed to monitor and oversee their workers. These may include software that records keystrokes on employees’ computers or GPS tracking devices that keep tabs on their whereabouts. Employers that rely on such technology have insisted that these measures are necessary to ensure productivity, especially in the context of remote work setups.
In late October, Abruzzo released a memo urging the NLRB to adopt new rules governing employer surveillance of workers that would guarantee such monitoring does not interfere with their legally protected right to organize or create fear of retaliation for doing so. This would entail creating new requirements for employers to disclose the types of surveillance that they have deployed, how any collected information is used, and compelling reasons why less intrusive methods are not sufficient to further their legitimate interests.
We find that two-thirds of voters (66 percent) say that employers' surveillance of workers, such as monitoring activities or measuring productivity, should be legally limited to only that which is functionally necessary, while only 27 percent believe that the level of employer surveillance should be determined by employers. This finding holds true across parties: Majorities of Democrats (76 percent), Independents (63 percent), and Republicans (59 percent) believe surveillance of workers should be limited by law, rather than set by employers.
Conclusion
A funding crisis at the National Labor Relations Board has increasingly jeopardized the agency’s ability to perform its mission of protecting workers’ rights, including the right to organize and collectively bargain. The increased appropriation in this year’s omnibus funding bill is a welcome development and a critical first step, but Congress must continue to act to ensure that the NLRB receives the resources it needs to do its important work in the years ahead.
We find that a majority of voters supports increasing funding for the NLRB, as well as instituting civil penalties for labor violations that could deter employer misconduct and provide the agency with a dedicated source of revenue. We also find that voters back key portions of its current agenda, including the issuance of a strong new “joint employer standard” and a crackdown on surveillance of employees. Defending and expanding labor rights is not just an important part of a progressive economic agenda — it’s smart politics, too.
Anika Dandekar (@AnikaDandekar) is an analyst at Data for Progress.
Matt Mazewski (@mattmazewski) is a fellow at Data for Progress.