This article appears in the April 2022 issue of The American Prospect magazine. Subscribe here.
One gap between American public opinion and American public policy has been growing steadily wider over the past dozen years. Public support for unions rose to a high point of 68 percent last year, while the actual rate of membership in unions, continuing its 70-year descent, hit a new low last year of a bare 6 percent of private-sector employees.
In democracies, the common response to realities so at odds with public sentiment is something like “there ought to be a law.”
In this case, there is. The National Labor Relations Act (NLRA), enacted in 1935, gave workers a legal right to form unions and bargain collectively. For a decade, it worked as intended, as a previously moribund union movement grew to encompass fully one-third of the nation’s workforce. For the next decade, despite a Republican Congress limiting the law’s scope with the Taft-Hartley Act in 1947, unions held their own. Thereafter, membership percentages began a slow but relentless decline, as court decisions and the ferocious opposition of American business to worker rights turned the NLRA on its head. Though the Act remained on the books, the penalties employers faced for violating its terms—by intimidating or even firing workers seeking to unionize—were so minimal that employer lawbreaking became common practice and successful unionization campaigns became rarer and rarer.
Eventually, Democrats became aware that the weakness of federal labor law not only triggered deunionization and hollowed out the middle class, but also reduced workers’ support for the Democratic Party. But Republicans are implacably opposed to unions, and a critical mass of Democrats are implacably opposed to abolishing the filibuster and restoring majority rule in the Senate. So while you can write a bill like the PRO Act, which would patch many of the holes in the NLRA, you can’t get it passed, and consequently, you can’t reverse labor’s decline.
Or can you?
Last summer, on a party-line vote, the Senate confirmed the nomination of Jennifer Abruzzo as general counsel of the National Labor Relations Board (NLRB), which oversees union recognition contests and investigates and adjudicates disputes over violations of the NLRA. While not a member of the Board itself (which by custom consists of three appointees from the president’s party and two from the opposition’s), the general counsel functions as the NLRB’s chief prosecutor, directing its roughly 500 attorneys across the nation on what kind of cases to bring and what remedies to seek. It’s a powerful position, but no previous general counsel had used that power quite like Abruzzo has.
Just two weeks after she was confirmed in late July, Abruzzo sent out her first memo to staff attorneys, a common practice for new general counsels, laying out the kind of cases attorneys should file. Her stated intention was to reverse the Trump-appointee-dominated Board’s anti-worker rulings that, she wrote, had “overruled legal precedent.” But she added that she also wanted to pursue other cases “not necessarily the subject of a more recent Board decision, [that] are nevertheless ones I would like to carefully examine,” because they, too, ran counter to the NLRA. For example, in cases where employers refused to recognize a union even though a majority of workers had indicated through signing affiliation cards that they wished to form one, she advised the Board attorneys to consult the Joy Silk Mills case for the appropriate remedy.
“Even labor lawyers had forgotten about Joy Silk,” says Catherine Fisk, a professor of labor law at the University of California, Berkeley. And no wonder: The Joy Silk ruling, which was promulgated in 1949 by a Board dominated by Harry Truman’s appointees, was substantially overturned in 1969 in a Supreme Court case known as Gissel, and the NLRB, dominated by Richard Nixon’s appointees at the time, wasn’t inclined to defend the Truman Board’s remedies.
One former NLRB special counsel called Abruzzo’s appointment “the most impactful action that the Biden administration took for working people.”
Under Joy Silk, employers who refused to recognize a union’s legitimate majority status had been compelled to recognize the union and to enter into bargaining with it, except in rare instances. Under Gissel, employers who refused to recognize a union’s legitimate majority status were compelled merely to run or rerun an election among their employees to determine union status, except in rare instances. That enabled employers to delay recognition and bargaining, in some cases for years, and to intimidate workers from voting in a union in a much-delayed election.
The abandonment of Joy Silk made a huge difference in employer behavior. As a 2017 article in the Santa Clara Law Review documented, eliminating Joy Silk’s standard for the remedy when employers refused to recognize their workers’ pro-union preference led to an immediate increase in employer violations of the NLRA’s letter and spirit. In the five years before Joy Silk was struck down, charges of employer intimidation totaled about 1,000 cases a year. Once the softball remedies of Gissel became the standard, charges exploded to a peak of 6,493 in 1981, after which they fell along with unionization efforts generally. Under Gissel, intimidation became the norm.
Abruzzo believed it would take going back to Joy Silk to make workers’ right to form unions—a right ensured by the NLRA—real again. Many employers, Abruzzo told me, are “abusing [the law’s] processes in order to coerce employees to change their minds and vote against the union, where it obviously enjoys majority support.” When Joy Silk was the standard, “there were many more elections that were untainted” by employer intimidation. And if the company, under a revived Joy Silk, enters into a bargaining process that it prolongs by stalling and refusing to reach an agreement, Abruzzo further believes the NLRB should compel it to compensate workers for what they would have made under a promptly negotiated contract, “if the employer had bargained in good faith from the start.”
Nothing in the PRO Act, or any labor law proposal over the past few decades, even touches on reviving Joy Silk. As one union official puts it, “we have a general counsel that’s pushing the envelope beyond what unions themselves have been pushing for.”
THE JOY SILK MEMO was just the beginning for Abruzzo. In short order, a flurry of other memos followed.
She called for increasing employers’ “back pay” payments to employees that they’ve illegally fired to include payments for the financial sacrifices the employees made due to the firing, such as withdrawals from 401(k)s or taking out loans. Her new standards also required employers to compensate unions for the expenses they incurred in fighting their employer’s illegal behavior. She proposed treating employers’ “captive audience” meetings, in which workers are invariably compelled to hear management’s case against unionizing, as an unfair labor practice, for which an appropriate remedy would be allowing the union to hold meetings with workers at their worksite as well. She recommended that costs to workers and unions be paid in full in any settlement agreements, while eliminating any “non-admission of guilt” language from such settlements to establish a pattern of violations if such were to exist. She recognized student athletes in lucrative college sports as employees under the NLRA. She ensured rights, protections, and remedies for immigrant workers under the NLRA.
And she instructed attorneys to hasten remedies under the NLRA’s 10(j) section by more frequently seeking cease-and-desist injunctions against offending employers. Abruzzo encouraged filing these injunctions not only when a worker in an organizing drive was illegally fired, but when an employer threatened to fire such workers, or to shut down the worksite if the workers go union. Both of those actions are also illegal under the NLRA. Abruzzo’s goal is to make sure that efforts to unlawfully thwart employees’ rights to form a union can “be nipped in the bud” while the organizing drive is still proceeding.
Abruzzo’s priorities at NLRB are pushing the envelope even beyond what unions themselves have been pushing for.
The Biden administration is clearly the most pro-union administration in American history, with its backing of the PRO Act, its recommendations for greater worker rights in the federal government, its extension of higher wage standards on federally funded projects, its preference for unionized companies in its domestic production bill, its groundbreaking demand for a fair union affiliation vote in a Mexican factory under the terms of the revised NAFTA, and the president’s own pro-worker message to the employees at Amazon’s Alabama warehouse. Even without Abruzzo’s efforts, this would be a significant step forward in the posture of a presidency toward the labor movement.
But few observers would dispute the assessment of Celine McNicholas, a former NLRB special counsel who is now the general counsel and director of policy and government affairs at the Economic Policy Institute, who tells me, “Installing Jennifer Abruzzo as the NLRB’s general counsel will be the most impactful action that the Biden administration took in its first term for working people.”
JENNIFER ABRUZZO HAS SPENT 23 of her 58 years as an attorney at the NLRB, starting out as a field attorney in the Miami office, rising to the position of deputy attorney for the Florida region, then moving at the Board’s request to its Washington, D.C., headquarters, where she rose to be deputy general counsel during the Obama administration. During the Trump years, she rotated out of government to the Communications Workers of America (CWA), where she served as special counsel until the Senate confirmed her nomination last summer.
Abruzzo grew up in a working-class family in the (then as now) working-class neighborhood of Jackson Heights, Queens. Her father was an electrical engineer at ConEd; her mother was an X-ray technician at Columbia Presbyterian Hospital. Both were union members. Jennifer, her parents, and her siblings (she’s the eldest of four) lived in a three-room apartment. “Not three bedrooms,” she clarified. “Three rooms. But I had a roof over my head and food on the table, and having those union benefits definitely helped us.”
She attended parochial schools, then went to college at New York state colleges: SUNY Binghamton and SUNY Stony Brook. An early marriage brought her to Miami, where she had her son, divorced, and went to work in the human resources department of a South American–oriented branch of Deutsche Bank.
“I was divorced with a young child and needed to support us both,” she said, “so I ended up going to law school, the University of Miami Law School, at night,” while working at the bank during the day. No labor law classes were available at night, but Abruzzo took an evidence class with Michael Fischl, a former NLRB attorney who taught labor law in the daytime.
Fischl, now a law professor at the University of Connecticut, recalls that he taught that evidence class “with a heavy labor and employment law emphasis.” In a class of roughly 100 students, he says, Abruzzo “stood out for her thoughtfulness and the depth of her engagement,” so much so that she was invited to join a social justice and legal theory book group with other faculty members and students.
“It’s hard enough to work and go to law school at the same time,” Fischl says. “Add to that being a single mom. I’m reminded of that line about Ginger Rogers, that she did everything Fred Astaire did, but backwards and in heels.”
When an attorney’s position came open in the NLRB’s Miami office, Fischl recommended Abruzzo for the job, though she’d had just a year in private practice. At the NLRB, she spent a good deal of her time representing immigrants from both Central and South America, as well as Haiti.
“What drew me to the NLRB?” Abruzzo says. “Coming from a union household helped, but what that instilled in me was a very strong work ethic, and also being empathetic towards others who might not have as much as we did … I just wanted to ensure that I did everything I could to ensure that people were treated equitably.”
“I WOULD DESCRIBE JENNIFER as the master mechanic of the NLRB,” says Jody Calemine, the general counsel and chief of staff at CWA. “She’s worked there at every level, she knows what works, what doesn’t work. She has encyclopedic knowledge of the case law, knows all the arguments inside and out, and she truly believes in the Act.”
When McNicholas worked as an NLRB special counsel while Abruzzo was deputy general counsel during Obama’s presidency, “she helped me figure out how the agency worked,” McNicholas says. “All the regional offices are overseen by general counsel’s division of operations. She brought a field perspective to the job.”
Abruzzo’s attentiveness to the concerns of the Board’s far-flung staff is already the stuff of legend. Her zeal to make the NLRA work again has won her a particular following among the many young attorneys who work there.
“I’ve seen her with her young attorneys,” says Julie Gutman Dickinson, an attorney in private practice who represents unions and workers who are misclassified by their employers as independent contractors rather than employees. “They see this general counsel who is brilliant, who believes in the Act, who articulates their beliefs so eloquently and who works so hard.”
One of those young attorneys is Aaron Samsel, who works in the Board’s Washington headquarters. After going to work for the Board right out of law school, he left during the Trump presidency, but when Biden nominated Abruzzo for the general counsel’s post, he decided to go back. “Among all my colleagues, both staff attorneys and supervisory attorneys, there’s this feeling of profound relief to have a general counsel who they feel has their back,” Samsel says. “She really listens when people bring concerns to her, and she understands it all. She can get into the minutiae of handling a case.”
That understanding of how workers and employers actually interact in an organizing campaign underpins many of Abruzzo’s directions to her staff. Her directive on filing 10(j) injunctions against employers threatening their workers during organizing campaigns is based on her knowledge that the long-established practice of winning back-pay settlements for illegally fired workers years after they’ve been fired does nothing to stop such conduct when it’s being used to thwart a unionization campaign. “10(j) injunctions are the teeth of the Act,” says Gutman Dickinson, who under its terms has won a number of such cease-and-desist orders and orders to reinstate fired workers, “and Jennifer completely understands that.”
The understanding of how workers and employers actually interact in an organizing campaign underpins many of Abruzzo’s directions to staff.
Abruzzo’s memos take aim not just at the timing but also at the insufficiency of the penalties the NLRB has commonly assessed against employers—chiefly, offering back pay to illegally fired workers and posting a notice somewhere in the worksite that the employer has been found in violation of the NLRA and made such a payment. Abruzzo points out that the Act doesn’t allow for punitive damages, so that truly enforcing it requires that fired workers be made financially whole. That means making the employer cover all loans, credit card fees, and withdrawals from savings and retirement funds that the worker has been compelled to make.
The NLRB should be looking, Abruzzo told me, at “how can we put people back to the way it was before all this unlawful activity occurred, at whether there’s been emotional distress that can be particularly linked to an unlawful discharge, in much the way our sister agencies [like, for instance, the Equal Employment Opportunity Commission] seek such compensation.”
Harvard labor law professor Ben Sachs explains, “For decades, the lament of labor lawyers and organizers has been that the NLRA remedies are like a bad joke, so weak that it’s economically rational for employers to violate the law. Now, she’s done something that really wasn’t in the collective legal imagination: figured out how to increase remedies without congressional action. She’s found a number of ways to do exactly that.”
“Making employers who’ve broken the law pay the union back for its organizing expenses could be of major importance,” Sachs says. “She’s been imaginative in an arena where many of us were just lamenting.”
Another remedy that wasn’t in the collective legal imagination is Abruzzo’s proposal to declare captive audience meetings an unfair labor practice, the remedy for which should be enabling unions to hold their own meetings with workers, at the worksite. She also has called for making employers provide unions with the home addresses of workers during organizing campaigns, a remedy that’s particularly important at a time when an unprecedented number of employees are working from home.
In her memos, Abruzzo has said Board attorneys should file cases based on the argument that the misclassification of workers as independent contractors when they are actually employees is in itself an unfair labor practice under the NLRA, for which the Board can provide a remedy that states the workers are employees and thus eligible to unionize. The Trump-dominated Board had ruled that such misclassifications were not an unfair labor practice. That’s one of the Trump rulings, Abruzzo has stated, that violates the NLRA and should be overturned. And on March 17th, following Abruzzo’s memos, NLRB attorneys filed a complaint against a port trucking company at the Los Angeles harbor for the unfair labor practice of misclassifying its drivers, which, if upheld by an administrative law judge, would compel the firm to compensate them for lost wages and expenses and to provide a union with access to the drivers in an organizing campaign.
Misclassification is at the heart of the gig economy and, increasingly, the economy at large. Depending on the “common sense” standard of whether, say, a driver of a company’s trucks is an employee or a contractor, such a ruling could affect such mega-companies as FedEx, Amazon, Uber, and Lyft, not to mention countless smaller employers.
JAE C. HONG/AP PHOTO
Abruzzo is taking on worker misclassification, a critical issue for port truckers.
As labor historian Nelson Lichtenstein points out, due to the need to win support from Southern senators, the NLRA initially excluded farm and domestic workers (that is, Black workers) from the law’s guarantees. As a result of the civil rights and kindred movements, some New Deal measures, like the minimum wage, were finally extended to some of those workers in recent decades. This triggered a new tactic from employers, Lichtenstein says. “The guarantees of labor law have been chipped away to exempt other people: managers, and now ‘independent contractors.’ That exempts more and more people from New Deal standards and rights. It’s been a Republican project.”
Making misclassification a violation of the NLRA would go a long way, then, to revive not just the NLRA, but an entire suite of legal obligations—like the minimum wage and payments into the Social Security and unemployment insurance systems—that companies now evade by refusing to acknowledge their workers actually work for them.
BOTH THE QUALITY AND the quantity of Abruzzo’s directives have dazzled the labor and legal communities, while alarming management-side attorneys. At a recent American Bar Association meeting that Abruzzo addressed, one corporate lawyer was overheard remarking, “We may have to find a different country.”
Abruzzo’s suggested reforms certainly mark a departure from previous practices under Democratic as well as Republican administrations. In the assessment of one longtime union official, “the Board under Bill Clinton viewed the Act largely as they received it, accepting as precedents the interpretations that had watered it down. The Board under Obama sought to update the law to meet new developments in the economy, as they did in their joint employer ruling saying that the parent company shared in the liability of its franchisers if they violated the Act, a ruling that the courts subsequently struck down. With Abruzzo under Biden, the agenda is now to get rid of all the erosions of the Act that have essentially ended the worker rights the Act created and secured.”
NLRB veterans generally believe the Democratic majority on the current Board will establish rulings that are based on Abruzzo’s arguments. “The majority will likely be sympathetic to all her proposals,” says Wilma Liebman, who chaired the Board during Obama’s presidency. Liebman is concerned, however, that the Board may be stretched by the sheer number of precedent-challenging cases that Abruzzo brings before it.
Some labor attorneys are concerned for a different reason: that Abruzzo’s agenda is both too ambitious and too well publicized. “I’m surprised at how public she’s been about it all, putting out her theories step by step,” says one. “Does the publicity heighten the possibility that rulings will be challenged more quickly in the courts? She may be giving employers an unnecessary head start.”
The courts, after all, can overturn NLRB rulings, and no court since the 1920s has been as anti-labor as the Supreme Court is today. Every attorney and union official I’ve spoken with for this piece has been gloomy about the prospects of some of Abruzzo’s policies passing muster with such avowed union-haters as the Supreme Court’s Sam Alito and his five Republican colleagues. They point out, however, that it normally takes many years for NLRB rulings to reach the Supreme Court (“They’re too busy right now outlawing abortion,” one lawyer said), and that during that interval, Abruzzo’s suggested policies can make it significantly easier for workers to prevail, particularly the generation of young workers at universities and Starbucks and tech companies, who in growing numbers are moving to win a voice at work. A case in point: Shortly after she sent out her memo calling captive audience meetings an unfair labor practice, the union seeking to organize Amazon’s warehouse workers in Bessemer, Alabama, put out a press release alleging just such violations, quoting her memo to bolster their case.
That may be one more reason, in addition to her determination to restore the worker rights encoded in the NLRA, and her general sense of justice, why Abruzzo looks to be in such a blessed hurry.
