New Orleans For years many union organizers have largely forsaken the NLRB as so legalistic and weighted towards delays and management manipulation that it has become an impossible mountain for workers to climb. Over the last six months, as we have been looking at the NLRB decisions around Starbucks and Amazon, many of you have heard my arguments that there was something that seemed to be changing at the NLRB, and both workers and organizers needed to take a fresh look at how concerted activity and organizing rights were being realigned under the Biden board and the current NLRB general counsel. More evidence is coming in to support what had been a tentative theory and has now evolved into stonecold facts. Harold Meyerson in the American Prospect offered a profile of the new NLRB General Counsel Jennifer Abruzzo, which argues my case in chapter and verse.
The bottom line is that she is trying to take the NLRB and the Act itself back to its roots in protecting workers’ rights to organize and the importance of collective bargaining as national public policy. She’s instructing the 500 NLRB attorneys at the national and regional level to look for cases that challenge some of the so-called precedents that have evolved over the last number of decades that have diluted the strength of the act and its protections. In the absence of fundamental reform in the law by Congress, which is simply not going to happen, her initiatives auger for a sweeping change in the NLRB and how the Act is administered.
One example, that Meyerson spends quite a bit of time discussing, involves the plain and simple question of an employer’s duty to recognize the wishes of a majority of workers when they sign authorizations demanding a union. More than 40 years ago when we started organizing unions, we saw something we called a Gissel bargaining order as the holy grail. Such an order in the face of unfair labor practices that were so egregious by an employer would force immediate bargaining. Abruzzo wants something even better and more accessible. Gissel was a 1969 Supreme Court decision that limited a 1949 decision in Joy Silk that compelled recognition of a union when the majority of workers presented evidence that they wanted one with their employer. Period. All that may be a bridge too far since it inevitably would be challenged by employers and their armies of lawyers and taken to the current Supreme Court in coming years. Nonetheless, I like the way she’s thinking, and where she wants to go!
Many of her proposals are in the weeds on the administrative level of the NLRB and more likely to be implemented, for example making fired workers “whole.” There are no such thing as punitive damages for workers fired for concerted activity now, so employers have found that they can dismiss with impunity, simply as the cost of doing business. Abruzzo is proposing that not only back wages, but other impacts of their illegal firing be compensated, like 401k losses, credit card charges, student loan defaults, and mortgage foreclosures. Even workers winning a case can be damaged by the number of years before the final appeals from the employer are exhausted. Having employers come to understand that they are going to have to pick up the whole package would be a gamechanger.
There’s more of course, including making captive audience meetings an unfair labor practice and as a remedy giving unions similar access to workers on the job during a campaign, but you get the picture. With a new sheriff in town at the NLRB, the NLRA might finally have a set of teeth with a real bite. All of us need to take advantage of these rights now, while there is a chance that they will actually be enforced.