By DON McINTOSH
What would America be like if federal law actually encouraged workers to unionize?
That’s a trick question, because it turns out federal law does just that. In the National Labor Relations Act, passed in 1935, Congress declared it to be the policy of the United States to “encourage the practice and procedure of collective bargaining.” That might surprise anyone familiar with the actual workings of the National Labor Relations Board (NLRB), the federal agency with 1,300 staff that’s supposed to enforce that law for 150 million American workers. Over the last half century, the NLRB’s budget has shrunk with inflation, and its rulings have drifted away from that founding goal. Like a deadly plaque that clogs up arteries, accumulated NLRB decisions have given an entire industry of union-busting attorneys the ability to obstruct union organizing and bargaining using legal delays that totally contradict the spirit of the law. The whole playbook was exposed by a guilt-ridden practitioner in the 1993 book “Confessions of a Union Buster” and hasn’t changed much since.
But two years ago, President Joe Biden appointed a new top prosecutor to lead the enforcement side of the NLRB. Her name is Jennifer Abruzzo. She had spent almost her entire career as an NLRB attorney and knew exactly what she wanted to do — refocus as quickly as possible on the agency’s founding goal.
To understand how she’s doing that and the obstacles she still faces, you have to know something about the agency she’s leading.
The NLRB is unusual among federal agencies. Most modern agencies are given a mandate by Congress — like “clean up the waterways” or “protect workplace safety” — along with the power to fulfill that mandate by developing rules and enforcing them with penalties. Not the NLRB. The NLRB has no penalties, only “remedies” that are meant to restore the status quo before violations occurred.
The NLRB also has a kind of split personality. It’s an agency with two sides.
One is the side Abruzzo is in charge of. Her title is general counsel, and she’s kind of like a labor law attorney general: She’s in charge of the field and headquarters staff who administer elections and investigate and prosecute labor law violations, which are known in NLRB jargon as “unfair labor practices.”
The other side is a five-member “board,” also appointed by the president, that functions like a labor law supreme court. It decides how the law should be interpreted and upholds or rejects the unfair labor practice cases pursued by Abruzzo’s staff. Curiously, the law says that three of the five have to be from the president’s party, and the other two from the other party. Especially in the last 43 years, that’s proven to be a recipe for constant reversals in direction.
So for Abruzzo to succeed in revitalizing the NLRB, she’s got to get the board to agree to change its interpretations — before the other party remakes the Board with a hostile majority. That takes time.
On July 13, two years into her term, Abruzzo joined the Labor Press by Zoom to talk about her vision, and the progress she’s made so far.
How would you describe the mission of the NLRB?
The NLRA was enacted in 1935 because workers lacked real channels of communication to affect workplace improvements. And that was causing wildcat strikes and a lot of other industrial instability. Congress thought to level the playing field so that workers could engage with one another and negotiate with their employers through representatives of their own free choosing to improve their wages and working conditions. So the way I view our role, we enforce a pro-worker statute that promotes the practice and procedure of collective bargaining and the free association of workers to take collective action to improve their lot in life. Our mission, in my opinion, is helping to empower workers to elevate their voices and to seek positive change in their workplaces.
Can you explain Joy Silk, (a legal doctrine the NLRB abandoned in 1966), and why bringing it back is so important if we’re going to restore the promise of the NLRA?
Employees under our statute have the right to join a union. And there have to be meaningful remedies when there’s interference with those rights. Joy Silk is a remedy that deals with employer interference during an initial and often very fragile time when workers are first trying to organize a union. There will be times where the agency will conduct an election. But there’s plenty of times where that doesn’t need to happen and where there could easily be voluntary recognition without the board getting involved. In the (1949) Joy Silk case, a majority of the workers wanted a union to represent them and the employer said, “No, we’re not going to voluntarily recognize you and you have to go prove majority support through an NLRB conducted election.” So the union filed a petition for an election with the agency, and during the course of time between the petition being filed and the election taking place, which is called the critical period, the employer committed a number of unfair labor practices to interfere with the employees’ free choice. In this case, the Board said that the employer’s only purpose in insisting upon an election was to gain more time to undermine the union support, as opposed to the employer actually having any good faith doubt that the union enjoyed majority support of the workers. So what I’m advocating for is that there should be a return to Joy Silk — to require the voluntary recognition of a union that has been designated by a majority of the workers in the workplace to represent them, unless the employer can demonstrate a good faith doubt that the union didn’t enjoy majority support from its workers. I feel that a return to Joy Silk would disincentivize employers from abusing our agency processes and committing unfair labor practices or engaging in other coercive conduct in order to circumvent the right of employees to freely and fairly choose a collective bargaining representative to bargain on their behalf to help them improve their wages and working conditions.
One thing that really shocks people to learn is just how weak the sanctions are for breaking this law. So for example, the worst thing an employer could probably do in a union campaign is just go and fire the union organizers. And I’ve seen that. I’ve seen an entire union organizing committee just fired. And the worst sanction that the employer faces when they do that is that they may have to pay back pay. And then to add to the insult, what the workers earn at another job after they’re fired can be subtracted from that back pay award. I know you’ve addressed this and are trying to be creative in make-whole remedies that are more comprehensive. Can you talk about that?
Under the current statute, the agency itself can’t mete out fines or penalties, but we do have broad discretion to provide make-whole relief. And make-whole relief, in my mind, is one that restores as closely as possible a worker’s situation prior to being subjected to the unlawful conduct. So you’re right. If someone is unlawfully fired, for example, we ask what wages and benefits were lost. But we also need to ask: What other losses did the worker suffer? And in fact, I briefed this to the board, the board agreed with me, in a case called Thryv, that in fact we need to be looking at all direct or foreseeable harms that resulted from the unlawful firing. So that could include credit card late fees and 401(k) penalties for early removal. Did people need to move to get another job and have all those moving expenses? Did they need to get trained in order to take another job? Did they need to obtain new health insurance coverage? Did they incur medical expenses due to a loss of coverage? We have been able to get some really great settlements with regard to the payment of consequential damages. We’ve gotten double rent, moving costs, mileage for commuting to interim employment. We had one guy who had a company car and then had to take a job elsewhere. And we made the employer who had violated the law pay for the retrofitting of the worker’s car at his new place of employment. We’ve had employers pay for late fees for rent, for car loans, interest on monthly loans taken out to pay for living expenses.
You’re ushering in so many reforms, and some of them are a little bit technical. But one of them I think people will be able to relate to is the right to have a coworker or witness go in when you are called and you’re going to be maybe disciplined by your employer. That seems like it’s been toggling back and forth in the case law, where during Republican administrations, you only have it if you’re a union member, whereas in a Democratic administration, every worker has that right. Where does it stand now?
The case you’re referring to is the Weingarten case. And as you say, there has been some flip flopping. Weingarten is a Supreme Court case. It was specifically looking at a unionized workforce and said that workers had the right, when they’re asked to engage in an investigatory interview and they fear that that may lead to some sort of discipline, to have a union representative present with them during the course of that investigatory interview. The board has gone back and forth with regard to whether or not workers in non-unionized settings similarly have those sorts of rights. That would be, in a non unionized workplace, a coworker. Where it stands right now, and I’m asking the board to reconsider it, is that workers in non-unionized workplaces do not have that Weingarten right. And I think that restoring Weingarten rights to non-union workers would better comport with the Supreme Court’s rationale in Weingarten itself and with our statutory language, and with the purposes of the NLRA, which is to enable workers to have a voice at the workplace and have a system for resolving workplace disputes.
We’ve heard locally from folks in the NLRB that the agency faces very significant budget constraints. Basically, with the NLRB, Congress has been chronically stingy. How inadequate is the budget?
I’m appreciative of Congress providing the agency with our $25 million increase in our appropriation this past fiscal year. Of course, this was after nine years of flat funding. But regardless of this small bump, we are really woefully underfunded, under-resourced, understaffed. The small increase that we received, frankly, allowed me not to have to furlough people. I did put some of that money towards authorizing some necessary hires for the field offices, but we’re still woefully understaffed. Some of the money did go into also maintaining our IT infrastructure. But basically, we’re just keeping the lights on. And we’re not able to backfill many of the positions that we desperately need, nor are we able to upgrade our case processing systems and our internal and external facing infrastructure, which is on its last legs. All of this affects our service to the public, particularly in terms of delays in case processing and not being able to get information to the public in real time. But that being said, I have to give a shout out to our board agents. They are so dedicated and working extremely hard. They have continued to step up to make sure that the rights of workers are protected and they are getting remedies very quickly for violations of our act. Last year, we had a 53% increase in election petitions being filed. We are conducting elections by the hundreds and litigating, unfortunately, related unfair labor practices in the thousands. But I would say just to provide some more support in the field, and to get some upgrades to our current infrastructure, we need at least $70 million more. We’re at $300 million now. I mean, I would love $100 million more, but I’ll take $70 million.
It’s been almost 90 years since the NLRA was passed, and it seems like the budget is still completely contested in Congress. What do you make of that politicization of something so basic?
It is politicized. And it’s really unfortunate. Workers deserve a well-funded agency that can ensure that their rights are being protected and that violations of those rights are being quickly remedied.