Late last summer, with old terms expired and nominees confirmed, the National Labor Relations Board’s game-changing transition was complete.
“It put a fierce general counsel at the wheel, along with a board majority committed to the agency’s 1935 charter to protect workers’ rights and foster the growth of unions. Determined to leave an era of hostility in the dust, they steered into a high-speed U-turn toward justice for America’s working people.
Fourteen months later, the good things happening at the NLRB are very, very good. The bad — namely a long-frozen budget — is fixable with enough pro-worker votes in Congress.
The ugly is what will happen without them.
Like the fictional “The Simpsons” character Monty Burns rubbing his hands together with a malevolent grin, anti-worker forces are raring to slam the brakes on progress if they take over the House, the Senate, or both, in November.
Among them is North Carolina Rep. Virginia Foxx, the likely chair of the House Education and Labor Committee if the GOP takes control. Repeatedly, she has denounced the NLRB for respecting and expanding workers’ rights.
“I’ve joked with my colleagues that we will probably be holding two oversight hearings a day, because we’re going to be so busy with oversight,” Foxx said, laughing, as reported by Politico in late August. “We’re going to hold the NLRB and DOL accountable.”
Union members and all workers need to understand what that means, International President Lonnie R. Stephenson warned.
“Under President Biden, we have a board that is returning millions of dollars in backpay to wrongfully fired workers, a board that races into federal court to protect workers from employers that still think they can get away with blocking organizing drives or refusing to bargain, and a board that is in the process of reversing anti-worker policies and case law that made a mockery of the National Labor Relations Act.
“In other words, we have a board that is doing its duty, giving workers and unions a fair shake, and our opponents can’t stand it,” Stephenson said. “Their agenda has nothing to do with accountability and everything to do with rigging the game against us again. We can’t let that happen.”
THE GOOD: Putting workers first, today’s NLRB is brisker, more aggressive, more committed, better staffed, more efficient, more technically advanced and more publicly accessible online. Even a short list of work in progress illustrates what’s at stake in the midterm elections.
- Union insignia is back. In a major reversal in late August, the NLRB ruled 3-2 — with both GOP members opposed — that workers have the right to wear union insignia at work, whether T-shirts, buttons, stickers or related attire. The case was brought by the UAW against Tesla, and overturned a 2019 decision that allowed Walmart to ban pro-union emblems. Board Chair Lauren McFerran said they are protected communication under the NLRA. “For many decades, employees have used insignia to advocate for their workplace interests — from supporting organizing campaigns, to protesting unfair conditions in the workplace — and the law has always protected them… the Board reaffirms that any attempt to restrict the wearing of union clothing or insignia is presumptively unlawful and — consistent with Supreme Court precedent — an employer has a heightened burden to justify attempts to limit this important right.”
- Holding corporations accountable as joint employers. On Sept. 6, the board proposed to rescind and replace a Trump-era rule that let big companies off the hook for contractors and franchises that illegally block union organizing drives and otherwise violate labor law. While the larger companies have the ability to change terms and conditions of employment, they have been able to evade responsibility for collective bargaining. The board intends to change that. Under the proposed rule, two or more employers would be considered joint employers if they have the authority to “share or codetermine” such matters as wages, benefits, scheduling, hiring and discharge, discipline, workplace health and safety, supervision, assignments, and work rules. “In an economy where employment relationships are increasingly complex, the board must ensure that its legal rules for deciding which employers should engage in collective bargaining serve the goals of the National Labor Relations Act,” McFerran said.
- Banning captive audience meetings. In a no-holds-barred directive in April, General Counsel Jennifer Abruzzo said employer coercion is in direct conflict with the NLRA, making forced anti-union meetings illegal. The board is examining relevant cases that could be the basis to overturn precedent and remove one of the most potent weapons that management wields against union campaigns.
- Voluntary recognition. Abruzzo is pushing for a revival of the “Joy Silk” standard for voluntary recognition — effectively card-check organizing — based on a 1949 NLRB ruling for textile workers that lasted until the Supreme Court killed it in 1969. Joy Silk held that employers had to honor the request of a majority of workers to organize unless they had a good-faith basis to deny it. Lacking that, they could be ordered to bargain without a formal election. Big business is up in arms about returning to any union-friendly standard for organizing, just as it is preemptively fighting the board’s other bold initiatives. Underscoring how critical November’s legislative elections are — in addition to Congress — a North Carolina lawmaker recently introduced a bill to amend his state’s constitution to require secret ballot elections for unions.
- Making wronged workers whole. The board is pursuing “consequential damages” and other “make whole” recourse for workers who lose their jobs or otherwise suffer due to law-breaking employers. An IBEW case involving a small group of laid-off California telecom members whose company unilaterally terminated their health care could be the basis of new precedent. Abruzzo said the NLRB will use all possible tools “to ensure that those wronged by unlawful conduct obtain true justice.”
- Every right matters. In a 2017 ruling, the GOP-controlled board made it easier for employers to infringe on a universe of workers’ rights via rules and employee handbooks, targeting everything from strikes to social media, moonlighting, cell phones, gag orders, and on-duty conduct. Abruzzo took aim at the decision in her first major memo, and the board is working to undo the damage.
- Ensuring workers’ rights are a priority government-wide.Taking President Biden’s marching orders to heart, the board is partnering with other federal agencies to tackle a wide variety of workers’ rights’ issues. In July, for instance, the board announced joint initiatives with the Federal Trade Commission and Department of Justice to address worker misclassification, the abuse of noncompete agreements and other anti-worker business practices. “When businesses interfere with worker organizing, either through creating structures designed to evade labor law or through anticompetitive practices, it hinders our economy and our democracy,” Abruzzo said.
THE BAD: It starts with more good news, the headline-making surge in organizing drives. With an unabashedly pro-union president and an NLRB that shares his values, the welcome mat is out.
New and likely historic numbers will be available soon, but the early stats are impressive already. During the first nine months of fiscal year 2022 — all but a month of it between President Biden’s election and the end of June 2022 — union petitions filed at the NLRB soared by 58%. In sheer numbers, that’s nearly 1,900 petitions, up from just under 1,200 filed during the same period in FY 2021.
But more staff is needed urgently to handle the incoming petitions and rising unfair labor practice charges, resulting not only from new campaigns but from workers everywhere more boldly exercising their rights.
Staffing shortages aren’t new, with the NLRB’s budget frozen the past nine years by foes on Capitol Hill. Despite that, under Abruzzo and McFerran, the agency has moved swiftly to fill jobs that the previous board left open and has been tenacious about efficiencies to make the most of available funds.
Pro-worker members of Congress tried to boost NLRB funding by way of the Inflation Reduction Act in August, but opponents stood in lockstep. “If there is one beast that Republicans love to starve the most, it’s the part of the government that protects workers’ ability to form unions and bargain collectively,” Michigan Rep. Andy Levin told the Guardian newspaper.
Rep. Foxx had her say in the same article, calling more money for the NLRB “an inherently stupid idea.”
THE UGLY: The entire GOP caucus is lined up behind Foxx and other anti-worker leaders in the House and Senate, determined to stall, starve, and ultimately derail the new NLRB as an agency living up to its promise to protect the rights of America’s workers to unionize and bargain collectively.
“None of this is hyperbole,” Stephenson said. “The NLRB is our enforcer, the agency that was created to have our backs when employers willfully, arrogantly break the law to block and weaken unions by any means possible — illegal firings, discipline, intimidation, harassment, anything to demoralize workers and threaten their livelihoods.
“The past few years before Joe Biden’s election, the board was controlled by people who stood with those lawbreakers and against us. We can have the best president for labor we’ve ever had in the White House — and we do — and we can have allies fighting for us on Capitol Hill to pass the Protecting the Right to Organize (PRO) Act and other pro-worker legislation — and they are.
“But laws and policies have to be enforced,” he said. “And that means ensuring that we elect members of Congress who will support, not attack, a strong, fair NLRB, as well as senators who will swiftly fill vacancies when they arise in order to ensure that this board’s vital progress continues and grows.”