As workers at large companies increasingly move to unionize, the political environment for labor couldn’t be more mature.
Perhaps nowhere is that more accurate than with the National Labor Relations Board, the body that enforces the country’s labor laws and oversees union elections.
Over the past year, Biden-appointed senior prosecutor Jennifer Abruzzo has attempted to break precedent and revive decades-old labor policies that supporters say would make workers easier to unionize. To fulfill her wish, Abruzzo must have support from the five-member board of directors, whose Democratic majority is expected to be sympathetic to her proposed changes. As for President Joe Biden, he has vowed to be “the most pro-union president” in US history.
“In the past, the focus was on employer rights or interests. And I don’t believe this is in line with our congressional mandate,” Abruzzo said in an interview with The Associated Press.
The changes Abruzzo is pursuing come as workers at major corporations, including Starbucks, Amazon, and recently Apple, achieve union victories. But any shifts in the agency’s labor law enforcement will likely be reversed under a Republican administration and will meet fierce resistance from employers in federal courts.
Currently, the agency is in the crosshairs of Amazon, which argued during an NLRB hearing that began last week that the union victory at one of its warehouses on Staten Island, New York, should be thrown out. In one of 25 objections, the company addresses a lawsuit filed in March by the NLRB’s Brooklyn office to reinstate a fired Amazon worker involved in the union action. The e-commerce giant claims that labor organizers and the agency acted in a manner that tainted the mood.
The agency had repeatedly sued Starbucks in federal court since December, most recently on Tuesday when it asked a court to reinstate seven employees in Buffalo, New York, who it said had been illegally fired for trying to unionize. Abruzzo has said she would “aggressively” seek such remedies during her tenure, even prosecuting cases where an employer has only made threats against employees. Abruzzo says she has also asked field offices to look out for other threats to employees.
John Logan, the director of labor and employment studies at San Francisco State University, said some of the changes Abruzzo seeks are policy shifts that labor scientists have wanted for years.
“We have a general counsel who is prepared to do things that have not been done in the past,” Logan said. “And also to do it in the context of a period of labor organization that we haven’t seen for decades and decades.”
Abruzzo had been an NLRB attorney for more than two decades, climbing through the bureau ranks to serve as deputy general counsel under former President Barack Obama. She briefly served as acting general counsel and left the agency during the Trump administration for a stint with Communications Workers of America, one of the largest unions in the US. Last year, she was confirmed in her current role in the US Senate along party lines.
Perhaps her most important move since then was an NLRB case filed in April, in which she asked the labor council to reinstate Joy Silk. This secretive legal doctrine could dramatically change how unions are typically formed in the US.
Abandoned nearly 50 years ago, Joy Silk would force companies to negotiate with a union that ensures most workers through authorization cards rather than going through a lengthy election process. Logan noted that Joy Silk essentially curtails employers’ ability to run long anti-union campaigns in the run-up to an election when unions tend to lose employee support.
A formal move towards Joy Silk is expected to be fiercely opposed by companies and work-rights groups seeking private elections. Some experts say elections better reflect how workers feel about a union. And the run-up to a vote typically gives companies time to argue with workers why they should oppose unionization, which is legal as long as employers comply with labor laws.
However, labor activists and pro-union experts argue that some employers are using the time to fight back by any means necessary, including mandatory meetings where they set out all the reasons why workers should reject unionization.
While the labor council has allowed employers to mandate such meetings for decades, Abruzzo argued in an April memo that it was based on a misunderstanding of employers’ right to speak and should be banned. She wants to make the meetings voluntary for employees.
Representative Virginia Foxx, the Republican leader of the House Committee on Education and Labor, criticized Abruzzo’s memo shortly after it was released, calling it “a hyper-partisan love letter to unions.”
“If the NLRB chooses to destroy decades of precedent and silence job creators, the consequences will be disastrous,” Foxx said.
But field offices are following suit. About a month after Abruzzo’s memo was issued, the NLRB’s Brooklyn office said it was found in a lawsuit filed by the Amazon Labor Union accusing Amazon of violating labor laws at one of its warehouses on Staten Island, New York, by holding mandatory meetings to persuade workers to repudiate the union, fueling even more bad blood between the company and the agency.
Mark Nix, the chairman of the National Right to Work Legal Defense Foundation, said it’s difficult to take Abruzzo’s quest for more worker rights seriously as she seeks to overturn a Trump labor council decision that made it easier for employers to negotiate. About a future when they know a union has lost majority support.
Abruzzo had indicated that it is one of several decisions she wants to reverse from the Trump era when cases were spearheaded by her predecessor, Peter Robb, who was widely seen by organized labor and Democrats as an employer advocate. Biden later fired Robb.
“The hypocrisy is off the table when you think about workers’ rights,” Nix said. “When she’s done with her job, she should apply for the job as a lobbyist at the AFL-CIO because she’s going even further than union officials ever imagined.”
Experts say it’s too early to know how successful Abruzzo could be in her efforts, as the changes she seeks are still working through the NLRB process. Logan, the occupational health expert, said she has been more aggressive than her Democrat-appointed predecessors but still faces a significant challenge as changes she pursues are likely to be heavily litigated.
“Unfortunately, it won’t help the workers at the moment,” he said.