Too Radical or Not Radical Enough? US’s Top Labor Lawyer in the Spotlight
As the Biden administration lays claim to being the most pro-union in generations, many US labor leaders have hailed Jennifer Abruzzo as the National Labor Relations Board’s (NLRB) most vigorously pro-union general counsel in decades.
The top lawyer at the body charged with enforcing US labor law has been hailed as a champion by some and as a “radical” by her opponents. For others involved in the white-hot world of union organizing, she has not gone far enough.
Abruzzo’s bona fides are clear. She has repeatedly urged the NLRB’s five-person board to adopt new policies that would make it easier to unionize. She wants the board to prohibit so-called captive audience meetings in which Amazon and many other companies require employees to listen to anti-union speeches from managers and consultants. She wants the board to require employers to grant union recognition once a majority of workers sign cards saying they want a union.
The NLRB is the federal agency that oversees and referees unionization efforts and collective bargaining in America’s private sector. Its general counsel serves essentially as a prosecutor who cracks down on labor law violations, for instance, on companies that fire workers for supporting a union or on unions that engage in illegal picketing.
With a Republican Senate filibuster blocking Joe Biden’s push for legislation to make it easier to unionize, many unions and workers are looking to the NLRB’s board and Abruzzo to make it happen instead – especially after the labor board under Donald Trump moved to undermine unions in various ways.
As general counsel, Abruzzo has hit Starbucks particularly hard, filing an extraordinary number of complaints over its anti-union tactics – a total of 19 complaints accusing Starbucks of 81 illegal unfair labor practices, among them spying on workers, firing more than a dozen pro-union workers and closing stores in retaliation for unionizing.
Nonetheless, the Starbucks workers’ union complains that Abruzzo has not been aggressive enough toward Starbucks. It’s upset that the NLRB hasn’t filed a complaint against what many union supporters say is proving to be Starbucks’ most effective anti-union strategy. Howard Schultz, Starbucks’ CEO, has warned that the company would give raises and improved benefits to baristas at its non-union stores, but not to workers at stores that have already unionized or petitioned for a union election. Not only has this caused many baristas to hesitate about backing a union, but some labor leaders fear that other companies may embrace this potent anti-union tactic.
In an interview with the Guardian, Abruzzo was asked – while avoiding mention of any particular company – whether it was illegal for an employer to tell its workers that it will give raises and better benefits to its non-union workers, but not to its workers who recently voted to unionize and are seeking to negotiate their first contract.
“I think saying that is an unfair labor practice,” Abruzzo said. “I would say it’s unlawful, absent compelling business justification.” She added: “To me that statement is inherently discriminatory conduct.” Federal law prohibits employers from taking discriminatory or retaliatory actions against workers for supporting a union.
The US Chamber of Commerce has said Abruzzo has a “radical agenda hostile to employers”, while Republicans on the House labor committee accuse her of a “flagrant disregard of applicable case law” and “unconscionable efforts to further a partisan objective”.
Richard Bensinger, one of the Starbucks union’s lead organizers, complains that Abruzzo has not been aggressive enough in going after Starbucks. He says Abruzzo’s failure to file a complaint over Schultz’s threat not to give certain raises and benefits to unionized employees has hurt his union’s historic unionization drive. Starbucks Workers United has unionized more than 200 corporate-operated Starbucks since the first one was unionized last December. Starbucks has repeatedly denied engaging in any illegal anti-union activities.
To the union’s dismay, Schultz’s threat to deny raises and benefits to baristas in unionized stores has scared many employees and slowed the union’s momentum. Schultz asserts it would be illegal to “unilaterally” impose those raises and benefits on unionized employees. Without discussing any specific employer, Abruzzo said that a CEO who offers benefits to non-union employees but not to unionized ones seeking their first contract should be required to offer those benefits to unionized employees to give the union the opportunity to reject them, waive them or accept them while continuing to bargain.
Abruzzo’s biggest complaint is that the NLRB’s budget has not risen for nine years. This budget freeze, she said, has often made it impossible for the board to act as quickly as she would like – for instance, by bringing more complaints against employers engaged in widespread anti-union illegalities.
“We’re been flat-funded at $272.4m since 2014,” Abruzzo said, noting that after factoring in inflation, the board’s budget has shrunk 25% since 2014. She said the board’s staff was being squeezed terribly because the number of petitions for NLRB-run union elections jumped 58% in the first nine months of the federal fiscal year – to 1,892 from 1,197, driven in large part by workers at more than 300 Starbucks stores petitioning for union elections. The board has also brought 16% more unfair labor practice charges (a total of 12,819) than in the year-earlier period.
The budget freeze “places great strains on our agency”, Abruzzo said. “We’re dealing with much more work and much less resources.” She noted that more than half of the board’s 26 regional offices are down at least two full-time “professionals”.
“I’d say the public is suffering from our inadequate funding and our lack of staff,” she added. “I don’t want this agency to be an obstacle at all for workers who are attempting to engage in concerted activity to improve their workplace conditions. With insufficient resources, it becomes very challenging, and we become not an obstacle, but potentially a delay in enabling workers to get to the place where they want to be.”
Abruzzo is pleased that Biden and congressional Democrats have agreed to increase the NLRB’s budget to $319.4m for fiscal 2023, but she fears that number may prove a mirage because of the myriad roadblocks to enacting legislation. Many Republicans are happy to keep the NLRB underfunded.
One of Abruzzo’s goals is to overturn what she says were incorrect, anti-worker decisions made by President Trump’s NLRB. “We need to remember we are a neutral, independent federal agency that enforces a pro-worker statute,” she said. “I really don’t think the Trump board majority kept in mind the congressional mandate to protect workers’ rights to engage in protected, concerted activity.” She criticized the Trump board for narrowing the definition of concerted, pro-worker activity and making it easier for corporate work rules to punish workers who speak out about workplace conditions.
Abruzzo has urged the five-person board to ban captive audience meetings, prompting loud protests from business groups that such a move would abridge employers’ free speech rights. Abruzzo denies she is limiting corporations’ free speech.
“Employers,” she said, “are free to engage with their workers and offer their opinions and arguments as to why their workers would be better off without union representation – if they make it voluntary for workers whether they want to listen to that anti-union rhetoric.” Noting that workers depend on their employers for their livelihood, Abruzzo said workers would feel “very intimidated” about not attending these required meetings. The National Labor Relations Act prohibits employer intimidation or coercion, she noted.
In another move that upset business, Abruzzo has proposed returning to a 1949 NLRB policy, known as Joy Silk, that would require employers to recognize a union once a majority of workers sign pro-union cards, unless the employer has good-faith doubts about the legitimacy of the majority. “When a union demonstrates that it enjoys majority support of workers in a workplace and an employer refuses to recognize their workers’ chosen representative … solely to undermine union support, which typically happens through unlawful coercion and other unlawful acts, that to me is problematic,” Abruzzo said. “We should not be allowing those employers to delay recognition so that they can coerce these workers to think differently or choose differently.”
Business lobbyists often deride the legitimacy of card checks, asserting that thuggish union supporters bully workers into signing cards. Abruzzo scoffed at that notion. “Many high-road employers have agreed to a card-check process and enjoy very good labor-management relations,” Abruzzo said. “Employees aren’t economically dependent on their union for their livelihoods, unlike being economically dependent on their employers for their livelihoods. They’re less likely to be swayed by ‘bullying’ by unions than they would be by swayed by ‘bullying’ by their employer.”
Acknowledging that the NLRB’s normal procedures can sometimes take a long time, she has pushed the board’s regional offices to seek more emergency injunctions in federal court, for instance, to quickly reinstate pro-union workers the board believes were fired illegally. Too often those firings aim “to nip in the bud organizing drives”, Abruzzo said. “We have to move quickly because every day that workers are subjected to unlawful threats, interrogations, surveillance and retaliation for engaging in organizing activities is one day too many.”
Abruzzo dismisses attacks from business lobbyists that she is some pro-union radical. “I’ve spent almost 25 years of my professional career with the NLRB, acting as a public servant,” she said. “During that time, I enjoyed – and I still enjoy – very productive relations with management and labor practitioners. We are a neutral, independent federal agency, but we have a pro-worker congressional mandate, and I’m going to vigorously protect the right of workers to self-organize, join a union and bargain collectively with representatives of their own choosing.”