by Jon Erik Haines*
National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo came into her role in somewhat unceremonious fashion, following the sudden sacking of Trump administration General Counsel Peter Robb. Her tenure also began under the auspices of then-candidate Biden promising that he would be the “most pro-union president” we have ever had. If General Counsel Abruzzo’s first several memoranda are any indication, Biden may be able to keep his campaign promise through the strong pro-union direction of his NLRB. However, it remains to be seen whether an unequivocally pro-labor NLRB and a self-described union man in the White House will be enough to stem the decades-long tide of declining union membership without broader legislative changes.
The memoranda of General Counsel Abruzzo (as well as Acting General Counsel Peter Sung Ohr who served in the role after Biden’s firing of General Counsel Robb) indicate a desire to push the boundaries of the National Labor Relations Act (although perhaps not to its limits). If the policies called for in these memoranda are adopted, workers attempting to organize their workplaces would receive stronger protections and noncompliant employers could expect harsher penalties for their violations of the National Labor Relations Act (NLRA). The memoranda also call for a broader number of workers to be protected by the Act.
In MEMORANDUM GC 21-03: “Effectuation of the National Labor Relations Act Through Vigorous Enforcement of the Mutual Aid or Protection and Inherently Concerted Doctrines,” acting General Counsel Ohr describes how the General Counsel’s office will attempt to protect workers standing up for themselves in their workplaces. The memo strongly affirms the “fundamental right” that workers have to organize and stand up for themselves free from any employer retaliation. Specifically, the memo takes a broad interpretation of what it means for a worker to be acting for “mutual aid or protection.” The memo argues that workers should be protected from adverse employment action when their protests are tied to their interests as workers, even if their protests are not aimed at specific management practices or are aimed at practices outside of management’s control. (For example, under the protections proposed by the memorandum, workers would be protected while protesting with the Fight for $15 movement.) The memorandum also argues that conversations between only two coworkers, or conversations that do not directly contemplate group activity should remain protected by the NLRA if the conversations are regarding certain “vital categories of workplace life” such as wages, workplace safety, and racial discrimination (i.e. “inherently concerted activity”).
A more recent memorandum (MEMORANDUM GC 21-06: “Seeking Full Remedies,” published on September 8, 2021) outlines how General Counsel Abruzzo plans to expand the remedies available to aggrieved workers under the NLRA. This memo “calls for a complete overhaul of NLRB remedies.” This overhaul is much needed, as research has demonstrated that employers routinely flout the NLRA’s worker protections with few repercussions. The memo contains a list of remedies that regional offices should seek when faced with an employer’s Unfair Labor Practice (conduct prohibited by the NLRA), including:
- Reimbursement of a union’s bargaining expenses incurred as a result of employer’s bad faith bargaining;
- An expansion of the make-whole remedies available to workers who were discriminatorily discharged to include front pay, liquidated (i.e. double) back-pay, as well as consequential damages such as credit card late fees or loss of a home or car due to missed payments that occurred as a result of the termination.
- Equal time for unions to address employees during organizing campaigns, reimbursement of organizing expenses, installment of a union-chosen replacement for any worker who is unlawfully fired during an organizing drive
- Restitution based on the unjust enrichment of employers who fire undocumented workers in violation of the NLRA.
These broad remedies could force employers to think twice about taking actions in violation of the act.
Additional memoranda have described other ways the General Counsel will seek to expand the power of the NLRA. One called for a review of a series of anti-worker decisions that came out of the Trump administration’s NLRB. Another expressed the intention of the General Counsel to seek injunctions to prevent Unfair Labor Practices from affecting organizing and contract drives. The memorandum that most boldly departs from precedent is “Statutory Rights of Players at Academic Institutions (Student-Athletes) Under the National Labor Relations Act,” which calls for extending the NLRA’s protections to collegiate athletes. In that memorandum, Abruzzo states “[w]hile Players at Academic Institutions are commonly referred to as ‘student-athletes,’ I have chosen not to use that term in this memorandum because the term was created to deprive those individuals of workplace protections.” The broad and comprehensive attitude General Counsel Abruzzo has taken in her memoranda indicates that more strong, pro-worker memoranda may be forthcoming.
These memoranda represent a call for a change in the law, but due to the complex structure of the American labor law system, the existing precedent will not be overturned until the General Counsel has an opportunity to argue particular cases dealing with these issues before the NLRB. The NLRB then would decide on the basis of the facts of the case, and the outcomes will depend on the ideological make-up of the Board when the case is heard. On top of that, NLRB decisions can be reviewed by the federal circuit courts, which have refused to enforce pro-worker NLRB decisions in the past.
There are also needed pro-worker changes to labor law that cannot be achieved simply through reinterpretation of existing NLRA law, but instead require congressional action. Congressional Democrats on their own could pass some of those changes through reconciliation, while others would require 60 votes in the Senate and thus the cooperation of Republican senators. As it currently stands, an existing version of the reconciliation bill contains an expansion of NLRA penalties, but that bill is expected to be re-written yet again, leading to uncertainty as to whether the labor reform provisions will be included in the final draft. (It is worth noting that these provisions would actually be revenue positive for the government, as they would allow for the NLRB to enact greater fines on non-compliant employers.)
Beyond the law, economic trends such as financialization and outsourcing have undermined workers’ leverage by pitting them against lower-cost labor in domestic and international jurisdictions with fewer worker protections. However, despite the anti-worker headwinds, American workers are showing signs of discontent with their current lot, leading to hope for a surge of worker activism. While significant obstacles remain to building a legal framework that is more conducive to worker organizing, the recent NLRB General Counsel memoranda are strong indicators that the Biden administration is serious about following through on its campaign promises to the labor movement.
*Jon Erik Haines, University of Minnesota Law School Class of 2022, JLI Volume 40 Symposium Editor