A drop in the number of cases in the Trump era is in part attributable to declining union membership, but another factor, Abruzzo noted, is that during GOP administrations, workers and unions are less inclined to carry complaint for fear of risking an anti-labor precedent. Stare decisis doesn’t cut much ice at the NLRB; the precedents oscillate wildly, depending on whether a Democrat or a Republican is in the White House.
One of the most ridiculous examples concerns the question of whether graduate students from private universities who are paid to teach or help research can join unions. Under President Richard Nixon, the board of directors said yes in 1970. Then he said no, they can’t, in 1972 (Nixon again). A no even firmer in 1974 (Gerald Ford). Then in 2000 the board said sometimes yes, sometimes no (Bill Clinton, of course). Never again in 2004 (George W. Bush). So yes, in 2016 (Barack Obama).
Trump’s board attempted to kill graduate student unions by issuing a regulation, but rule making takes time and the regulation was not completed until Trump stepped down. So Biden scuttled him. Graduate students from Columbia, Brown, NYU, Stanford, and all other private universities in the United States remain free to join unions. For now, anyway.
Perhaps, he said, Biden’s board of directors will attempt to regulate these disputes on their own on a more permanent basis, but “it is time consuming and resource intensive.” It is also outside the competence of the Advocate General. For its part, Abruzzo said the Wagner law “should be interpreted broadly to cover as many workers as possible”. The Wagner Act is not neutral on whether the NLRB should work to increase union representation. “I think it’s getting lost,” Abruzzo told me. If workers “can really engage with their employer with or without a union and feel that they can make a difference in their lives, that will only help us all.”