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jennifer abruzzo
NLRB Head Says Corporate Union-Busters Want to Distract Public With Legal Challenges
"These esoteric arguments came about why?" said National Labor Relations Board Chief Counsel Jennifer Abruzzo. "Because we dared to issue a complaint against SpaceX after it unlawfully fired eight workers."
Apr 10, 2024
Amid an ongoing nationwide surge in union organizing across numerous industries in the U.S., powerful corporations in recent months have argued the federal watchdog tasked with ensuring fair labor practices is, itself, unconstitutional—but the nation's top labor lawyer said Tuesday she doesn't buy the claims of Amazon, Trader Joe's, and other companies.
The "deep-pocketed, low-road employers want to divert [the National Labor Relations Board's] sparse resources to defending ourselves in court," NLRB General Counsel Jennifer Abruzzo said at a virtual event, "to slow down or prevent us from engaging in concerted action. They're just trying to stop our enforcement actions."
Abruzzo spoke at a webinar titled "Preserving the Administrative State: Threats to Administrative Law Enforcement in the Courts," hosted by the left-leaning think tank Roosevelt Institute.
Watch the event below:
The event was held just over three months after SpaceX, billionaire enterpreneur Elon Musk's space exploration company, filed a complaint against the NLRB after the board accused it of unlawfully firing eight employees. SpaceX claimed that a "constitutionally required degree of control is lacking" at the agency because its judges and five board members cannot immediately be dismissed by a president.
In moves Abruzzo on Tuesday called "jumping on the bandwagon," an attorney for Trader Joe's argued at a hearing weeks later that the "structure and organization" of the NLRB is unconstitutional, and Amazon made a similar claim in February. Starbucks said in its own legal filing that the limitation on removing NLRB judges and members "frustrates the presidential control Article II [of the U.S. Constitution] demands."
"These esoteric arguments came about why?" said Abruzzo. "Because we dared to issue a complaint against SpaceX after it unlawfully fired eight workers for speaking about their workplace concerns. And then Amazon jumps on the bandwagon, Starbucks jumps on the bandwagon, Trader Joe's, others get in on the action just because we're trying to hold them accountable for repeatedly violating workers rights to organize and collectively bargain through representatives of their free choosing."
All the companies have been accused by the board's prosecutors of violating labor law—a fact that Abruzzo said the corporations are eager for the public to forget.
A key goal of the legal filings is to "to divert attention away from the fact that they are actually lawbreakers who need to be held accountable in a timely manner," Abruzzo said at the Roosevelt Institute webinar. "And frankly, that strategy is working. There's a lot of public reporting about the challenges as opposed to the law-breaking."
In addition to SpaceX's alleged illegal firing of workers, the companies have been accused of retaliating against employees, limiting workers' access to a warehouse, and closing store locations to discourage union activity, among other violations.
NLRB judges have already ruled against Starbucks, Amazon, and Trader Joe's in several workers' rights cases.
Two of the companies—SpaceX and Amazon—were founded by the two richest men in the United States, Musk and Jeff Bezos.
"Once billionaires are scared of the power of the NLRB, they bring in the big guns," Diana Reddy, a labor law professor at the University of California, Berkeley School of Law, said at the Roosevelt Institute event.
Abruzzo said courts are likely to reject the companies' claims, noting the U.S. Supreme Court upheld the organizational structure of the NLRB in 1937.
Other federal agencies, including the Consumer Financial Protection Bureau and the Securities and Exchange Commission, have also been challenged as unconstitutional by corporate interests. Rulings in those cases are expecting in the coming months.
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After the Latest NLRB Ruling, Unions Must Stomp on the Accelerator
The conditions for the labor movement to organize millions of new workers are much better than usual, but we have yet to see the tangible evidence that the institutions of the union world are using this opportunity to leap into action.
Aug 30, 2023
The happy times are here at the National Labor Relations Board. The agency, which has been the brightest beam of sunshine in the Biden administration’s stormy attempts to empower organized labor, passed down a decision last week that could make it meaningfully easier to organize unions—potentially the first of a wave of pro-union decisions that could be coming before the end of Biden’s term. It’s nice to have the government on our side, for once. But these rulings are only one brick in an entire wall of power that the labor movement needs to build, before all of the gains we’re celebrating now get swept away.
Last week’s NLRB decision in a case known as Cemex should go a long way towards disincentivizing companies from illegal union busting tactics. The new rule says that when the majority of a company’s employees sign union cards and ask for recognition, the company must either recognize the union, or file a petition requesting a formal election within two weeks. In a crucial change, though, “if an employer who seeks an election commits any unfair labor practice that would require setting aside the election, the petition will be dismissed, and—rather than re-running the election—the Board will order the employer to recognize and bargain with the union.”
Currently, the employer playbook is to deny recognition, stall for as long as possible before the formal election, and use the time in between to lie and intimidate and harass workers so much that they decide to vote “no.” Employers routinely use illegal tactics during that union busting period (think Starbucks firing workers and closing stores when they try to organize), because they know that any unfair labor practice (ULP) charges will take months or years to be litigated, and carry paltry penalties. Now, even if companies do demand a formal election, they will have to think very carefully about staying within the bounds of the law when they recite their trite anti-union talking points, because if they commit any serious ULPs, they could be automatically forced to recognize and bargain with the union.
Jennifer Abruzzo and the NLRB are proving to be the single best reason for the left to support Joe Biden.
This is something. It’s not a panacea, but it’s a step. It should make the grossest abuses by major companies less common. It shifts the onus for obeying existing labor law further onto the employer, rather than forcing unions to act as cops and prosecutors and spend years pursuing a slew of ULPs, which won’t be decided until long after they have served their purpose of preventing a successful union drive. The new standard won’t stop all the highly paid anti-union consultants from writing outrageously misleading scripts about the horrors of unions that workers will have to sit through, but it should begin to change the fact that it has long been rational for employers to break these laws, because the downside for doing so was so small.
In coming weeks, we could also see the NLRB issue several more decisions that could expand the speech rights of workers, empower strikes, and restrict the scope of “management rights” provisions that companies use to do whatever they want. Jennifer Abruzzo, the NLRB’s general counsel, is pushing as hard as possible to fully transform America’s existing suite of regulations into one that helps workers organize, rather than hinders them. It remains to be seen how much of her vision will become a reality, but Abruzzo and the NLRB are proving to be the single best reason for the left to support Joe Biden.
After being beaten down (or, in the best of times, just ignored) by U.S. presidents and their regulators for 50 years, unions are prone to exulting at small gains. That can cause them to lapse into satisfied rest when they should instead be stomping on the accelerator. For the sake of maintaining a proper perspective, let me pull back here to articulate the full context of this nice NLRB decision. Cemex may dissuade the next Starbucks or Amazon-type employer from wantonly firing organizers and telling outright lies—or it may not, because if an employer fears that they will lose the union vote, and the penalty for grotesque ULPs is simply to be forced to accept having a union anyhow, they may reason that it’s still worth breaking the law, because they would end up with a union either way. The limitations of even these better regulations point to the need for harsh financial penalties for illegal union busting, and for a rule that would force companies into arbitration if they stall and refuse to bargain a first contract.
Getting that sort of really meaningful labor law reform would take something like passing the PRO Act. That won’t happen as long as the filibuster exists. Until all the Democrats (including Biden!) who claim to be union friendly are ready to scrap the filibuster, it’s a useless dream. Furthermore, as soon as the next Republican president is elected, you can rest assured that the NLRB will be turned into an agency dedicated to rolling back every single helpful reform that Abruzzo is now working to pass. And—more important than any of this—even with a pandemic that radicalized millions of workers, historically high public popularity of unions, and the most pro-union president in our lifetimes, union density has continued to go down every year.
The wind is at our backs. But the ship still isn’t going anywhere.
Celebrate this marginal regulatory improvement, sure. Be happy we have a good rather than a bad NLRB, and a president whose instinct is to assist rather than crush organized labor. But do not for a second think that we have won anything yet. The conditions for the labor movement to organize millions of new workers and truly shift America’s balance of power towards working people are much better than usual, but we have yet to see the tangible evidence that the institutions of the union world are using this opportunity to leap into action and pour resources into organizing, rather than watching their bank accounts swell as the percentage of workers in unions shrinks.
The Democratic Party is a transactional partner to labor. It will only help us to the extent that we are strong enough to push it to do so. Joe Biden does not pass out union cards. The NLRB does not organize workers. Only the labor movement can do that. Sometimes, like now, the government offers us a small step up. It won’t mean much for the world unless we take it as a signal to start running.
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A Labor Revolt Is Brewing... Inside the National Labor Relations Board
"From Congress, we demand funds, not furloughs," says the NLRB union. "From NLRB General Counsel Jennifer Abruzzo, we demand collaboration, not coercion."
Dec 01, 2022
Workers at the federal agency tasked with enforcing U.S. labor law are directing their ire at their own bosses and members of Congress.
"Fund the NLRB. Support our staff. Protect the agency's mission."
The union representing rank-and-file employees of the National Labor Relations Board announced Thursday on social media that it plans to hold a rally to support agency staff outside the NLRB's Washington, D.C. headquarters on December 8.
In addition to drawing attention to how "a decade of underfunding" has brought about what the NLRB Union recently called "budgetary Armageddon," agency workers and their supporters intend to protest NLRB General Counsel Jennifer Abruzzo's ongoing attempt to limit teleworking, which they say is an attack on her employees' quality of life and ability to do their jobs.
"Case intake is exploding. Furloughs are imminent," the NLRB Union tweeted. "We need immediate action. WE NEED FAIR FUNDING NOW."
"But that's not all. Our own NLRB bosses will soon make our jobs even harder by restricting our ability to work remotely," the union continued. "Starting 12/26, Abruzzo will force us to waste time by commuting more to the office. Our work and lives will be needlessly burdened. Our mission will suffer."
"Instead of serving as a model of healthy labor relations," the union added, "Abruzzo has put her foot on our necks. The voices of hundreds of NLRB staff demanding continued modest workplace flexibilities have been coldly ignored, just to gain leverage at the bargaining table."
\u201c\ud83d\udea8ANNOUNCEMENT\ud83d\udea8\n\nRALLY TO SUPPORT NLRB STAFF\n\nWhen: Thursday 12/8 2PM\nWhere: NLRB HQ - 1015 Half Street SE in D.C.\n\nThe NLRB is in crisis brought on by a decade of underfunding. Case intake is exploding. Furloughs are imminent. We need immediate action. WE NEED FAIR FUNDING NOW.\u201d— National Labor Relations Board Union (@National Labor Relations Board Union) 1669913047
Calling for "immediate action," the NLRB Union wrote: "From Congress, we demand funds, not furloughs. Staff, not stagnation. From Abruzzo, we demand collaboration, not coercion."
"Run the agency with respect, not rigidity. Stop hard bargaining and simply let us do our work!" the union urged. "Fund the NLRB. Support our staff. Protect the agency's mission."
Also on Thursday, Karen Cook, president of the NLRB Professional Association--a separate union representing 122 staff attorneys and Freedom of Information Act specialists at the NLRB--sent a letter imploring congressional appropriators to allocate more money to the cash-starved agency.
The yearslong failure of federal lawmakers "to appropriate sufficient funds for the agency," wrote Cook, "has jeopardized our workforce's ability... to fulfill the mandate assigned by Congress," which is to enforce the right of workers under the National Labor Relations Act (NLRA) to engage in pro-union activity.
"Since FY 2014, the NLRB has received the same $274 million dollar appropriation," Cook noted. "That funding level actually represents a cut from FY 2010, where the board was appropriated $283.4 million. Adjusted for inflation, the agency's funding has been cut almost 30% since the 2010 fiscal year."
"As federal employees, we are constantly asked to do more with less," Cook lamented. "We work on 10-year-old computers with limited legal research tools and outdated electronic case management systems. Training funds evaporate, while headquarters personnel who've been asked to assist with cases in different regions are not able to do so in person because travel has been curtailed."
While "the number of full-time staff has dropped from over 1,700 to around 1,200" since 2010, "there has not been a corresponding decrease in the agency's workload," Cook pointed out. "Instead, representation petitions and unfair labor practice [ULP] charges have proliferated. From FY 2014 to FY 2022, the number of ULP filings per field staffer increased 39%."
"The only mechanism to enforce the core rights under the NLRA is through the NLRB," wrote Cook. "An employee does not have a private right of action to sue their employer for interfering with employees' organizational rights or retaliating against them for engaging in protected activity. Accordingly, when Congress fails to adequately fund the NLRB, it is those employees (and their workplaces) who are harmed by the delays in case processing."
Cook continued:
Ironically, the proposed raise for federal employees, although well-deserved, is no boon to employees of the NLRB. Having already made cuts in spending, the agency has no room to absorb payment of the increase without an increased appropriation. I know of no other federal agency that will be forced to furlough employees in order to raise pay, and no other federal employees whose cost-of-living increases will be clawed back in the form of unpaid, forced furloughs. In these circumstances, we are left to wonder what rational, prospective public servant would sign up for a career defending NLRA rights when Congress has made clear that those civil servants are so disfavored.
Having spent almost 40 years working for this agency, I can report first-hand that the current predicament facing the agency is without precedent. When I joined this agency, there was a consensus across the political spectrum that the rights enshrined in the NLRA are a bedrock of modern American democracy and that they bolster interstate commerce and profitability, as well as middle-class achievement of the American dream. Those safeguards and rights will not endure as an indelible feature of the 21st century social contract unless Congress maintains a commitment to them. It is with that in mind that I implore you to increase the National Labor Relations Board's appropriation to a level that will allow the board to not only avoid furloughs but also increase hiring.
The letter from the NLRB Professional Association comes just two days after the co-chairs of the Congressional Labor Caucus urged House Speaker Nancy Pelosi (D-Calif.) and Senate Majority Leader Chuck Schumer (D-N.Y.) to ensure that the NLRB receives additional funding in the final appropriations bill of the lame-duck session--before Republican lawmakers, who have demonstrated a greater hostility toward organized labor, take control of the House.
Citing another recent letter in which NLRB leadership told members of Congress that the agency "has already implemented a hiring freeze and, without additional funding, will likely be forced to pursue furloughs," the labor caucus leaders stressed that "we must heed this stark warning."
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