As the labor movement has grown, so have the number of cases filed to the National Labor Relations Board (NLRB), the federal agency that enforces U.S. labor law. But that increase comes at a time when the agency is understaffed and underfunded, just a few of the issues that experts say contribute to the NLRB’s lack of teeth when it comes to penalizing employers who break labor laws.

During the first six months of Fiscal Year 2024 (October 1 to March 31), the number of union election petitions filed with the NLRB increased 35%, compared to the same period last fiscal year. (These petitions are requests for an election for workers to vote on whether or not they want a union.) At the same time, the number of unfair labor practice charges filed with the agency rose by 7%. That’s not as drastic as in past years—in the first half of Fiscal Year 2023, unfair labor practice charge filings rose 16% across NLRB field offices—but it speaks to the challenges of organizing, and of the labor board’s inability to adequately protect workers.

The importance of union petitions increasing

It’s not only employees who can file union petitions; employers can too, to determine support for a union (and to get a say on which employees are included in that vote). Those employer-led petitions actually made up the majority of the recent rise in union petition filings, thanks to an NLRB ruling issued in August 2023. Called the Cemex Decision, it was meant to give workers a new path to unionization and reign in labor law violations from employers.

The Cemex Decision works like this: When a union requests recognition and says it has a majority of worker support, the employer must either immediately recognize and bargain with the union, or file a petition for an election within 14 days. But if the employer files a petition and then commits any unfair labor practices, the NLRB will bypass the election and order the employer to recognize and bargain with the union.

That decision was meant to make getting union representation a more “timely and fair process” for workers, NLRB Chairman Lauren McFerran said at the time. The fact that union petition filings are up—even if they are employer-filed petitions—shows that worker interest in unions is still growing.

But getting union representation is just a first step. Workers then have to bargain for a first contract with the employer—a process that can take years. Starbucks workers are still bargaining for their first contract, despite first unionizing in 2021. In that process, workers and employers negotiate over issues like pay, benefits, scheduling, and so on. A 2018 study found that 63% of unions failed to reach a contract within one year of winning their election; after two years, 43% of unions still had no contract.

The Cemex Doctrine shows that the NLRB is trying to be more aggressive when it comes to taking actions against employers that break labor laws. (NLRB judges have only used that doctrine, meaning they ordered a company to recognize and bargain with a union, in two cases so far, Bloomberg reported in February) But how aggressive it can be is still stymied by a history of underfunding, and narrow interpretations of its power.

Why do so many employers break labor laws?

Individuals, unions, and employers can all file unfair labor practice charges with the NLRB, but that’s also only a first step. After the charge is filed, an NLRB regional director investigates. If they find merit to it, they issue a complaint and a notice to appear before a judge for a hearing. 

Even when employers are found to have committed unfair labor practices, though, the NLRB doesn’t have many options to force employers to fix the violations. There aren’t monetary penalties for breaking federal labor laws; the NLRB is only allowed to seek “make-whole remedies,” such as back pay for a wrongfully-terminated employee. The board can also require employers to post a notice that they broke the law, and that they’ll promise not to do so going forward. 

These labor violations inhibit the organizing process, and essentially fail to incentivize employers not to break the law. Say workers elect to join a union, and then their employer refuses to show up for bargaining meetings, or seeks to push back those meetings by requiring everyone attend in person rather than over Zoom (as Starbucks did, which the NLRB said was illegal). In that case, the NLRB might just order the company to bargain. 

“But [the union] hasn’t been able to bargain with [Starbucks],” says Lee Adler, a labor and civil rights practitioner and professor at Cornell University’s Industrial and Labor Relations School. Speaking hypothetically, he continues: “And then another year goes by and there’s five more unfair labor practice charges, and every time the [labor] board says, ‘The remedy is: shame on you, bargain.’ There’s no teeth. There’s no incentive for employers to obey the law.”

Why the NLRB lacks teeth—and how it’s trying to get some back

The NLRB is plagued with issues like insufficient funding and staffing shortages. In its recent release on case increases, the NLRB noted that in the past two decades, staffing in its field offices has shrunk by 50%. Even as the agency needs more resources, it has only received “flat funding” for nine of the past 10 years. Congress did give the NLRB a $25 million funding increase last year—which it said helped end a hiring freeze, prevented furloughs, and allowed the agency to backfill vacancies. But the agency says it’s still understaffed after years of underfunding.

“Whether it’s a Democratic Congress, a Republican Congress, a split Congress, a president who’s a Republican, a president who’s a Democrat, they all have seemed to be indifferent to essentially supporting the NLRB with the kind of workforce that is needed to get quick, expedited activity when the law is broken,” Adler says.

More staffing would certainly help the NLRB address issues in a more timely manner, and make it more problematic for employers to delay bargaining or otherwise break labor laws. The NLRB’s administrative law judges hear and settle unfair labor practice cases, and these positions are understaffed. If there were four times as many of those judges—though certainly more than that is currently needed, Adler says—they could create “almost like an avalanche” of law and workplace changes that would make employer recalcitrance less prevalent. 

But beyond funding and staffing issues, bureaucratic and political constraints have limited the NLRB’s power, making the remedies it can order increasingly narrower. For example, when Hoffman Plastics Compounds fired an undocumented worker who was unionizing, the NLRB found that the company violated labor law, and ordered back pay for that worker. But when the case went to the Supreme Court in 2002, it denied the back pay because the worker was undocumented. The employer faced no penalties; the judges who dissented were concerned that employers would use an employee’s immigration status as a way to skirt labor laws.

Adler also wonders if there has been broader, government-wide reluctance to expand what the NLRB can make employers do. This is also why labor leaders have been calling for Congress to pass the Protect the Right to Organize (PRO) Act, which would, among other things, allow the NLRB to issue monetary penalties for each labor law violation by an employer.

For years, the labor board has acquiesced to its limited power, Adler adds, by saying “there’s nothing we can do. We don’t have any remedies” for punishing employers who break the law. But that has begun to change with NLRB General Counsel Jeniffer Abruzzo, he says, who has sought more effective actions. 

“The Board possesses broad discretionary authority to fashion remedies to fit the circumstances of each case that comes before it,” she wrote in a 2021 memo. “To do this, we need to examine all of the ways that workers have been hurt by unfair labor practices and seek remedies that will fully address them.” In cases where an employee committed unlawful conduct during a union drive, Abruzzo urged regional NLRB offices to seek “reimbursement of organizational costs” as a remedy, for example. In 2022, she issued new penalties for companies that illegally fire workers who unionize, now making those employers responsible for workers’ credit card late fees, lost housing, or health care costs. 

Abruzzo has also urged the board to make it easier for workers to unionize. In a 2022 memo she called for the board to declare captive audience meetings (in which employers use company time to force employees to listen to anti-union arguments) unlawful. She also spoke about wanting to reinstate the Joy Silk Doctrine, which would make voluntary recognition of a union the default, unless the employer has good reason to believe a majority of its workers do not want a union.

The Cemex Doctrine is one way Abruzzo has taken a tangible step toward making the unionizing process easier, but again, organizing is just one step. Forcing an employer to adopt a contract with a union would mean figuring out the terms of that contract, which is a separate, bigger challenge that the NLRB hasn’t figured out yet. And as the NLRB has gotten more aggressive, companies have fought back, questioning its constitutionality.

Still, Adler believes that the NLRB—and Abruzzo in particular—wants to be more aggressive and says Abruzzo has been pushing the envelope. “They’re nibbling at the edges with regard to faster elections, and they’re fighting what they can fight, this employer obstinacy in even having an election,” he says. That has a real impact for workers—but it’s also not the same as requiring a certain level of pay or benefits through a union contract. “She’s nibbling really strongly on the end of getting people the opportunity to form a union, but it doesn’t necessarily quite get all the way home.”