NLRB in the Gun Sights

NLRB Supreme Court Unions

            New Orleans      When the progressive voice of the New York Times op-ed columns, Jamelle Bouie, ends his remarks on the aggressively hostile servitude of the US Supreme Court to capital and its antipathy to unions and working people, with the sentence, “If labor is ever going to get what it needs, it probably won’t be with the helping hand of a judge or a justice…”, it’s less a warning sign, than a gravestone marker.  The courts have never been our friends as a rule, but hope has still often sprung eternal.  As troubling, where rare bright spots had emerged in the stewardship of the National Labor Relations Board (NLRB) under the Biden’s ambitions to be the most pro-labor administration ever, these decisions and more recent attacks portend nothing but trouble on the horizon.

Bouie’s comments were triggered in reaction to the court’s decision to open the door for unions to be made responsible for financial damages incurred during strikes, as evidenced in Glacier Northwest v. International Brotherhood of Teamsters Local Union No. 174.  The issue involved a strike at a cement operator and the fact that the drivers walked out, as they had promised, but there was wet cement in the hopper.  Other workers were able to get most of the cement out of the truck, and it wasn’t damaged, but still the court held that the company could collect damages.  Only one justice voted against the decision as curtailing section seven rights to strike, and even other nominally liberal judges voted with the majority, perhaps to keep the decision from being worse.  There’s no way to look at any of this as good news, and all of it seeks to undercut the NLRB and its decisions on this and other matters.

`           Jennifer Abruzzo as NLRB general counsel has been a ray of hope in one opinion after another, but now with the court’s action, it could all mean one step forward and two steps back once employer challenges worm their way onto court dockets.  Her path-breaking argument that the very act of an employer holding a captive audience meeting was in and of itself a violation of the Act was spot on.  Captive audiences are employer-run, anti-union harangues where all workers are invited to a meeting that they refuse to attend at their own peril and speak to counter boss tirades at grave risk to their job, the law notwithstanding.  Such quasi-mandatory anti-union meetings have been the silver bullet in the employer’s arsenal during innumerable union elections.    Construction contractor associations have now begun to formally challenge this opinion, trying to kill it in the cradle.

With the deep pockets of Amazon, Starbucks, McDonalds, and scores of others, the advice from the NLRB that has also expanded the definitions of co-employers in order to hold primary decision makers with the deepest pockets responsible is also under attack once again.  The Obama board had taken good steps forward, which the Trump board quickly rescinded, so we’re in a situation where this is another shot that could miss the mark before the courts as well.  Add to this the fact that the Supreme Court seems to be undercutting the preemption of federal law under the NLRB’s enforcement of the Act and allowing state courts to sneak into the situation in various cases, and we’re talking about a hot mess that could devolve into an existential crisis for many unions and the workers represented.

Worse given the barrage of attacks against unions that have steadily decimated membership, resources, and, increasingly, even political strength, if as Bouie argues, judges and the courts are no longer a potential backstop, and justice for workers really is just us, then real and terrible trouble is at our doorsteps.