The labor movement has proven to be the most effective tool to boost wages, promote workplace safety, and raise interracial solidarity between workers — so it is no surprise that business and conservative interests have spent decades trying to crush unions and prevent workers from forming them.
Over the course of his four years in office, President Donald Trump stepped up the assault, using the National Labor Relations Board (NLRB), the administrative body charged with enforcing national labor laws, to instead weaken unions and prevent nonunionized workers from organizing.
The attacks were largely successful, with union membership plunging to a record low of just 10 percent of workers in 2020.
But on the eve of this Labor Day weekend, that dynamic might finally begin to change. That’s because President Joe Biden’s third pro-union appointee is about to join the NLRB, giving Democrats decision-making power on the board for the first time in years — and providing unions the best chance they’ve had in decades to get help from the federal government.
Worker advocates weren’t expecting much from Biden, considering his years of political moderation. But on the day he assumed the presidency, Biden did something no president had done before in nearly a century of presidentially managed American labor relations: He fired the general counsel of the NLRB, a rabid anti-union Trump appointee. For his permanent replacement, Biden chose Jennifer Abruzzo, an attorney who served on the board and worked for the Communications Workers of America union before being sworn in last month.
In the following months, he also took steps to reshape the NLRB’s five-member adjudicatory board, which has final word on whether employer actions violate the country’s major labor law, the National Labor Relations Act (NLRA). Trump had filled the board’s seats with anti-union lawyers, resulting in an eight-month window where all of the board’s members were Republicans for the first time since the board’s 1935 creation.
Biden reversed the trend, appointing to the board Gwynne Wilcox and David Prouty, two lawyers with deep ties to organized labor. Wilcox joined the board immediately upon her confirmation on July 28. Prouty will follow this week, when Trump appointee William Emanuel’s term expires this Friday, giving Democrats majority control of the board. (Democrats will have a chance to expand this majority in December 2022, when Trump appointee John Ring’s term expires.)
“These three people are just fantastic,” Ellen Dichner, a labor lawyer and lecturer in labor studies at CUNY, told the Daily Poster about Abruzzo, Wilcox, and Prouty. “I have total, total confidence that they will act to reverse the regressive decisions of the Trump board.”
Now, as organized labor faces a hostile judiciary and emboldened corporate behemoths determined to undermine worker protections, labor advocates are pinning their hopes on the NLRB’s new makeup to help them not only reverse the board’s recent anti-worker policies, but also to reconsider decades of decisions limiting workers’ collective bargaining powers.
The Trump Attack
Trump’s attack on organized labor wasn’t unusual for a Republican administration. Since the Reagan presidency, Republicans have used the executive branch to limit the application of labor law as much as possible.
“The decisions that started during the Reagan board really cut down on the areas where bargaining would be appropriate,” said David Leach, a retired NLRB attorney who served under every president from Ford to Trump. “From that point is where we started to see a real change in the enforcement of the [National Labor Relations] Act.”
But while Republican administrations over the last forty years have shown little enthusiasm for enforcement of labor law, “the Trump administration’s course was even more different than previous Republican administrations have been,” said Nick Juravich, an assistant professor of history and labor studies at the University of Massachusetts. Even beyond simply issuing anti-union decisions, the heads of Trump’s NLRB were “actively trying to restructure the agency to undermine its ability to do what it does,” Juravich said.
In 2017, Trump appointed Peter Robb as the NLRB’s general counsel, which means he set policy for the agency and directed investigations of unfair labor practices. Robb, a career anti-union lawyer, used his position to narrow the scope of the NLRB’s activities, limit its ability to protect workers’ legally-enshrined rights to organize, and bring the “deconstruction of the administrative state” to the domain of labor law.
“Robb was kind of a new breed of General Counsel,” Juravich said. “The overarching goal of his tenure, which in certain ways succeeded, was to make it much, much harder for workers to unionize and much, much harder for their unions to have a voice in the workplace.”
“We’ve watched the budget being authorized and the agency not spending it, and people getting older and retiring, and not being replaced,” said Leach of his time serving under Robb. “We were being told, ‘You’re overstaffed.’ When you tell somebody who’s starving to death that they’re overfed, morale gets hit tremendously.”
In addition to starving the agency, Robb attempted to neuter it, rolling out a plan in 2018 to disempower career employees like Leach from investigating possible violations of labor law and centralize decision-making power under the general counsel at the expense of the NLRB’s regional directors. The centralization plan was shelved in the face of protest, but the curtailing of investigative powers remained in effect.
Finally, Robb turned the NLRB against itself, forcing attorneys to reverse their positions on multiple cases in which lower-level judges had initially ruled in favor of workers. When employers appealed those cases to the five-member board, NLRB attorneys argued for employers’ positions when they had initially supported workers.
“When you litigate a case, and you win before the administrative law judge, and the evidence establishes that there was a violation of the National Labor Relations Act, to be then asked to argue an alternative argument . . . that was very frustrating and very difficult,” Leach said.
While previous Republican administrations had also asked NLRB attorneys to argue against their own positions, “there were more cases where these policy changes were coming up” during the Trump administration, Leach said.
Biden Strikes Back
Despite the vigor of Robb’s attack on collective bargaining rights, it wasn’t a given that Biden would fire him. No NLRB general counsel had ever been fired before; even Trump allowed Obama’s general counsel to serve out his term, replacing him only in November 2017.
But perhaps mindful of his pledge to be “the most pro-union president you’ve ever seen,” Biden fired Robb on Inauguration Day, and shortly thereafter appointed veteran NLRB attorney Peter Ohr to serve as acting general counsel while Abruzzo’s nomination moved through the Senate confirmation process. A week into the job, Ohr rescinded ten memos issued by Robb that had tilted the balance of NLRB proceedings toward employers and created obstacles to NLRB staff fully investigating potential labor law violations.
According to Leach, the move dramatically boosted morale among NLRB staff, since they felt that they would now be permitted to do their jobs in a basic sense. “People were saying that the light has come back, the sun is shining again,” he said.
But while Ohr was able to rescind Robb’s memos, the general counsel does not possess the power to reverse NLRB decisions, meaning that the Trump-era board rulings remain in place. With a Republican majority on the NLRB, that was unlikely to change. But with Prouty joining the board this week, those rulings have a chance to be reversed.
Abruzzo recently indicated that she’s ready to take advantage of a friendly board. In an August 12 memo outlining her priorities, she criticized the Trump-era board for “overruling many legal precedents which struck an appropriate balance between the rights of workers and the obligations of unions and employers.”
Abruzzo identified thirty-one rulings by the Trump-era board that she intends to reconsider. These included rulings protecting the ability of employers to ban employees from using “offensive language” on the job, banning employees using company email for union organizing, impeding union organizers from accessing publicly accessible company-owned spaces such as cafeterias, and declaring that the NLRB has no jurisdiction over religious nonprofit institutions, among others.
“I don’t think that there was one Trump-era decision that escaped her purview. Everything that was considered controversial in the last four years is in this memo for potential overruling,” said Brandon Magner, a labor lawyer and author of the Labor Law Lite blog.
Abruzzo also outlined several prior NLRB rulings limiting workers’ rights, some stretching as far back as the 1940s, that she may ask the board to reconsider.
The memo mandates that when cases concerning any of these rulings come before the regional offices of the NLRB, the case be referred to the general counsel’s office, which is likely to order NLRB employees to argue for overturning the rulings.
Both Dichner and Magner said that Abruzzo’s memo represented a new level of ambition for the NLRB. “The Democratic General Counsels over the last couple of decades have been quite good,” Dichner said. “But I think Jennifer has gone beyond other General counsels in what she seeks to argue to the Board to expand the rights of workers.”
Magner said that Abruzzo’s far-reaching agenda was likely a response to Robb’s tenure as general counsel.
Filing a memo outlining an agenda has been standard practice for both Democratic and Republican general counsels. But according to Magner, Robb “upped the ante by filing a really big [memo] with a ton of decisions, including some that . . . had been settled law for decades.”
Added Magner: “Abruzzo is matching Robb’s fire by saying, ‘I’m going to try and overrule everything you did, but I’m also going to look back historically.’”
Magner is particularly excited about three mid-twentieth century decisions that Abruzzo has placed within her sights. One of those is the 1949 Joy Silk ruling, which if reversed, would compel employers to bargain with a union that claimed majority support in the workplace, unless the employer can provide a good-faith reason to doubt the claim.
Abruzzo has also taken aim at the 1970 Ex-Cell-O ruling, which, if struck down, would require employers found to be bargaining in bad faith to pay damages to union members.
Finally, she wants the board to consider reversing the 1964 Hot Shoppes decision, which would make it more difficult for employers to break strikes by hiring nonunion workers.
“There is sort of an understated tone to the memo,” Magner said, “[But] what she’s looking at is a seismic change in the way the law has been enforced over the past 50 years.”
Despite Abruzzo’s ambition and a reinvigorated NLRB, Dichner noted that the country still needs a complete overhaul of its labor laws, such as the reforms laid out in Democrats’ sweeping workers’ rights legislation, the Protecting the Right to Organize (PRO) Act.
“If the Republicans come in again, they can flip the decisions just like the Trump Board did,” said Dichner. “But if Congress passes the PRO Act, that’s legislation that will restrict what a Republican Board can do.”