Terry Chea/AP Photo
Jonathan Mackris, a striking doctoral student at the University of California, Berkeley, poses for a photo on campus, December 7, 2022.
In a much-anticipated ruling released today, the National Labor Relations Board significantly increased employers’ liability when they violate the National Labor Relations Act by illegally firing workers, as very often happens to workers involved in unionization campaigns.
In a 3-to-2 ruling (Democratic-appointed members voted yes; Republican-appointed members, no), the Board ruled that when it finds that this violation has occurred, the miscreant employers should be on the hook for the damages they’ve inflicted on their discharged employees. Up to now, employers have only been required to give their fired workers the pay they would have earned during the time they’ve been unemployed, minus any wages that workers have earned on other jobs they’d taken since their firing. That made it temptingly inexpensive for employers to fire a worker involved in an organizing campaign rather than see their workers go union and have to pay them higher wages.
Today’s ruling recognizes that the sudden loss of a job may deprive fired workers of more than their paychecks. As the statement from the Board declared,
in addition to the loss of earnings and benefits, victims of unfair labor practices may incur significant financial costs, such as out-of-pocket medical expenses, credit card debt, or other costs that are a direct or foreseeable result of the unfair labor practices. The Board determined that compensation for those losses should be part of the standard, make-whole remedy for labor law violations.
Today’s ruling was sought by the Board’s general counsel, Jennifer Abruzzo, who has consistently endeavored to restore to the NLRA the pro-worker particulars it originally contained. Those particulars have largely been eroded by decades of ferocious employer opposition to worker rights, which has carried enough political clout to seep into court rulings and Republican policies, and to deter just enough Democrats from seriously coming to the workers’ defense. As is evident from his appointment of Abruzzo (whom I profiled earlier this year) and his support for organizing campaigns, President Biden—his intervention on the rail strike notwithstanding—is the most pro-labor president we’ve had.
Biden’s progressive appointments extend across the landscape of regulatory agencies, not least at the Federal Trade Commission, where Commission chair Lina Khan is resurrecting the long-dead imperative of restoring fair competition to our monopolized and monopsonized economy by taking our antitrust laws seriously. The long-ago authors of our antitrust laws sought to break up the great monopolies and trusts, as they were then called, for fear that they would not only stifle business competition and drive smaller firms out of business, but also exercise undue political power. In recent years, critics like Khan and Columbia University’s Tim Wu (temporarily advising Biden in such matters) have demonstrated how these corporate giants also damage communities by wiping out Main Street businesses and harm workers by limiting the number of other firms in the field that might offer better pay and working conditions. This new perspective on antitrust supersedes the shrunken-down one followed by the courts and regulators during the past 40 years. That shriveled perspective, based on the writings of right-wing legal polemicist Robert Bork, contended that all mergers were legal so long as they didn’t raise the prices consumers paid. By which metric, antitrust became a dead letter from the advent of Reagan to the coming of Biden.
Unions have been fans of this new doctrine for taking workers’ interests seriously for the first time in the checkered history of antitrust doctrine. But a major ruling from Khan’s FTC last week, which blocked Microsoft’s purchase of Activision, drew impassioned opposition from one of the nation’s few truly stellar unions, the Communications Workers of America. During the past 40 years, even as most unions abandoned the strike weapon after Reagan busted PATCO, the CWA has continued to wage and win major strikes and has had a string of organizing successes, including those at media outlets through its Newspaper Guild affiliate.
The CWA was also looking forward to major organizing successes at Activision once the Microsoft purchase went through, not only due to its own organizing chops, but due to a man-bites-dog development at Microsoft (which I wrote about in June): its announcement that it not only wouldn’t oppose the union’s organizing campaign at Activision but not even require an election once CWA had gotten a majority of Activision employees to sign union affiliation cards. That policy—really, the only such one coming from a major American corporation in memory, and one that could have portended a shift in labor relations from the nation’s increasingly dominant tech corporations upon realizing that their millennial and Gen Z employees really like and want unions—that policy, as I said, became collateral damage when the FTC turned down the merger.
As CWA acknowledged in its statement, mergers often lead to layoffs and increased domination of our politics by mega-corporations, which is why it supports the revival of antitrust, particularly in its new form, as it takes those factors into consideration. But in this case, Microsoft’s new policy made its proposed acquisition a positive good for Activision employees. To be sure, the FTC’s ruling positively impacted many millions of Activision game players and, even more important, laid down a marker that may limit power-hungry corporations from growing even more powerful. But if any of those corporations were mulling over the possibility that letting their employees actually exercise their rights might cause the government (at least, a Democratic government) to look upon them more favorably, that thought has now died aborning.
So the tally on the past week with Biden’s appointed regulators: One for the workers, one not so much.
