While Joe Biden’s reputation as a friend of labor is often grossly overstated, his administration’s stance toward the National Labor Relations Board (NLRB) could provide some welcome breathing room for union organizers in the years to come.
Part of the 1935 Wagner Act, the NLRB was established as an agency to protect workers’ rights to organize and engage in collective bargaining. Though the institution rarely makes for sexy headlines, it is where the Biden administration so far has had the most significant impact on the labor movement.
Just hours after his inauguration, Biden took the unprecedented move of firing NLRB general counsel Peter Robb before his term was up. A Donald Trump appointee, Robb presided over perhaps the most anti-worker NLRB in the country’s history. The board enthusiastically pursued a corporate wish list developed by the Chamber of Commerce and overturned scores of precedents that favored workers.
There is a glimmer of hope that the scales will start to be tipped back toward workers again. On July 21, Jennifer Abruzzo was approved as the new NLRB general counsel (GC), who workers depend on to actually prosecute the cases brought before them.
Unlike the former GC, Abruzzo has a background in the labor movement and spent the last three years working as the special counsel for strategic initiatives for the Communications Workers of America. Abruzzo immediately appointed Jessica Rutter, who served in a high-level position with the American Federation of Teachers, as her deputy general counsel.
On August 12, Abruzzo released a memo to NLRB staff that signaled a change in direction. In it, she identifies eleven areas where she’d like to change precedent from what the previous administration did. These areas include the scope of protected concerted activity, union access, employee status, the employer’s duty to bargain, and more.
While these areas sound like abstract legal jargon, they have very real impacts on the ability of working people to organize. Under the Trump administration, the NLRB severely restricted the access unions had to workers. Abruzzo’s memo signals an intention to overturn decisions like Kroger Limited, which limited the ability of union organizers to leaflet while still allowing other groups like the Salvation Army to do the same.
Issues like employee status determine which workers are even allowed to consider joining a union. The Department of Labor estimates that up to 30 percent of companies misclassify workers as independent contractors. These workers are denied their rights under the National Labor Relations Act (NLRA) and are unable to form a union.
In August 2019, the NLRB ruled that misclassification, even when it’s done intentionally to evade a union drive, is not a violation of the NLRA. If the present NLRB overturns this decision, it could be a boon to new organizing.
Abruzzo’s memo goes further than just overturning the worst decisions of the Trump-appointed NLRB. She includes other areas of labor law that she “would like to carefully examine.” One of these areas relates to the process of union elections. Under existing labor law, the process of a union election is long, drawn out, and stacked in favor of the employer.
For years, unions have advocated for “card check,” a process where, instead of a protracted election in which bosses have ample opportunities to destroy nascent union organizing drives, employers would have to recognize a union when a simple majority of the workers in a bargaining unit signed union cards. While not going so far as to call for card check, Abruzzo wants to explore requiring regional offices to send her office cases where an employer refuses to recognize a union and has either engaged in unfair labor practices or cannot “explain its reason for doubting majority status in rejecting the union’s demand.”
While these developments at the NLRB are encouraging, we shouldn’t get carried away with optimism. Labor law, especially in the United States, is extremely limited in its scope and power of enforcement. Building a vibrant labor movement that can exercise power in the workplace and working-class communities is the main task before us. Labor law cannot be a shortcut to this project. But improvements in labor law can open up meaningful opportunities to help further this larger task.
However limited, the new NLRB under Biden is a welcome change in the balance of power between workers and employers. Now it’s up to savvy organizers to exploit these openings to the fullest.