Presidential election pivotal in how labor board will referee unions

As the United Auto Workers continues its organizing drive in the South with an election next week at a Mercedes-Benz plant in Alabama, November’s presidential election looms as a potential turning point in the effort.

During their stints in the Oval Office, both Joe Biden and Donald Trump have used the National Labor Relations Board — an agency meant to serve as a referee in union elections and labor disputes — to significantly different ends, mirroring the board's reputation for reflecting the policy priorities of whoever's in power.

“The NLRB is just — it couldn't be more important. It's certainly more important than any time I can think of in my career,” said Sharon Block, a labor attorney and former member of the NLRB during the Obama administration.

Like many federal agencies, the NLRB is known for shifting the political orientation of its work between Democratic and Republican administrations. But former officials, labor scholars and union organizers say the recent shifts are beyond what they’ve seen in decades. Whoever wins November’s rematch can — and likely will — wield the agency’s power to either tamp down or charge up unionization efforts around the country.

"There's never been a period, really, where the board wasn't shaping labor policy," said Kate Andrias, a labor scholar at Columbia Law School and former Obama White House associate counsel. Players on the labor and management sides of union battles disagree on how to characterize the NLRB under Biden and Trump, but they agree the changes between the administrations have been stark.

"Under the Biden administration, they're going back on sometimes 75 years of case law and implementing standards that just had not been practiced for many decades," said Rachel Greszler, an economist and senior research fellow with the conservative Heritage Foundation.

Libertarian labor scholar Sean Higgins, a research fellow at the free-market Competitive Enterprise Institute, said the agency during Biden's administration has tried to continue an Obama-era trend of reinterpreting U.S. labor law and “rejiggering” itself to facilitate union membership.

He called Trump’s NLRB a “neutral sort of umpire organization” that harkened back to less politically divided periods of the past 35 years.

“The Trump-era board was basically trying to revert things to what had been the status quo for the most part during the George W. Bush, George Herbert Walker Bush and Clinton eras,” said Higgins, drawing a contrast from what he called the more activist positions taken by the NLRB during the Obama and Biden administrations.

"But then, obviously, some people are just going to view that as in and of itself being pro-management," said Higgins, who has written in detail about how he thinks pro-labor advocates misinterpret the foundational National Labor Relations Act of 1935.

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