Amanda Andrade-Rhoades/AP Photo
The National Labor Relations Board’s top prosecutor, Jennifer Abruzzo, poses for a portrait at NLRB headquarters in Washington, June 13, 2022.
In Michael Kazin’s excellent new history of the Democratic Party, What It Took to Win, he identifies two distinct types of economic reform that served at different times as the party’s chief calling card to voters. The first was an attack on concentrated economic power (which invariably also became concentrated political power), the anti-monopolistic, anti–big bank policies that held sway from the days of Andrew Jackson to those of William Jennings Bryan, Louis Brandeis, and Woodrow Wilson. The second was to bolster the power of Americans in their workplaces, which became a hallmark of the party during Franklin Roosevelt’s New Deal and has been a major—but intermittent and never quite sufficient—Democratic theme ever since.
Now, in a time when both neo-Brandeisians and zealous young unionizers have become forces that Democrats reckon with, those two tendencies came together earlier this week in an announcement that the National Labor Relations Board and the Justice Department’s Antitrust Division would work together to keep monopsonistic practices from infringing on workers’ rights and interests.
In a memorandum of understanding between NLRB General Counsel Jennifer Abruzzo and the DOJ’s Antitrust Division’s Assistant Attorney General Jonathan Kanter, what are perhaps the two most progressive themes of the Biden presidency became interwoven. As the NLRB’s announcement of the agreement makes clear:
The Department of Justice and the NLRB share an interest in promoting the free flow of commerce and fair competition in labor markets, including through protecting American workers from collusive or anticompetitive employer practices and unlawful interference with employees’ right to organize. The Agencies’ collaboration will focus on protecting workers who have been harmed or may be at risk of being harmed as a result of conduct designed to evade legal obligation and accountability (such as misclassifying employees or fissuring workplaces); interference with the rights of workers to obtain fair market compensation and collectively bargain (through labor market concentration/labor monopsony or other anticompetitive practices); and the imposition of restrictive agreements or workplace rules, such as noncompete, nonsolicitation, and nondisclosure provisions.
ED. NOTE: This follows on a joint agreement established two weeks ago between the NLRB and the Federal Trade Commission, which not only covered competition issues but also consumer protection, a core FTC mission.
The joint memorandum stipulates that the NLRB and the DOJ will refer to each other what they each see as potentially illegal acts of collusion or monopsony to suppress wages, impede workers’ ability to find other jobs, misclassify employees as independent contractors, and other sometimes industry-wide practices to deny workers their rights and their incomes. They will be able to collaborate on investigations as well.
In a sense, what this agreement does is bring both labor law and antitrust law into the 21st-century economy, in which gig employment and noncompete agreements have become common practice in entire industries, effectively undermining both the worker rights created by the New Deal and the anti-monopolistic efforts of pre–New Deal Democrats. Abruzzo and Kanter—who are among the smartest progressive appointments that Biden has made—had already prodded their respective agency and division to enforce their respective enabling laws in ways that made them far more responsive to the kinds of violations that have arisen in recent decades. By joining forces, they’ve created a powerful tool that can recapture some of the rights and income that workers have been losing to their monopsonistic employers for the past 40 years.
