If you follow the news it must seem like joining a union is a step outside the norms of US law. Afterall, the media is full of stories about how big companies like Starbucks and Amazon threaten their pro-union workers with dismissal, spy on their employees and deny them the right to meet and share information during legally mandated break and meal times, require their workers to participate in 1-on-1 and group meetings with managers where they are routinely told lies about what unions do and the consequences of unionization, find ways to delay promised union elections, and refuse to negotiate a contract even after workers have successfully voted for unionization.
Yet, the National Labor Relations Act, which is the foundational statute governing private sector labor law, boldly asserts that workers should be able to freely organize to improve the conditions of their employment. As the National Labor Relations Board (NLRB) states:
The National Labor Relations Act forbids employers from interfering with, restraining, or coercing employees in the exercise of rights relating to organizing, forming, joining or assisting a labor organization for collective bargaining purposes, or from working together to improve terms and conditions of employment, or refraining from any such activity.
So, one might reasonably ask, how do businesses get away with the kind of behavior highlighted above? One answer is that a series of Supreme Court decisions and NLRB rulings have reinterpreted the country’s labor laws in ways that have given employers a free pass to engage in a variety of anti-worker actions. Another is that Congress has refused to adequately fund the NLRB, leaving the organization unable to hire sufficient staff to do the needed investigations of worker complaints and oversee elections even during the rare periods when the NLRB has actively sought to protect worker rights.
President Biden has taken two actions that offer some hope for a progressive turn. The first is his inclusion of a significant increase in funding for the NLRB in his proposed 2023 fiscal year budget. The second, and more important one, was his 2021 appointment of Jennifer Abruzzo, a former attorney for the Communications Workers of America, as NLRB General Counsel. Abruzzo is pressing the NLRB to ban “captive audience” meetings as an unfair labor practice and to restore the Joy Silk doctrine, which would allow the NLRB to immediately recognize a union if a strong majority of workers signed cards or a petition demonstrating their support for unionization.
It remains to be seen what will come from either action. At the same time, labor activists have shown tremendous determination in the face of corporate opposition and their organizing work appears to be paying off. We should celebrate their bravery and support their efforts. However, gains shouldn’t have to be so challenging—if organizing to improve working conditions is a guaranteed right, it should truly be protected.
We have a business-friendly labor law
Private sector labor law has, over time, become increasingly business, not worker, friendly. For example, the NLRB originally required employers to remain neutral when workers considered whether to unionize. However, in 1941, the Supreme Court ruled that employers had the right to make their case as long as their actions were not “coercive.” The Taft-Hartley Act of 1947 gave new meaning to the court’s decision by inserting into the NLRA what is known as the “employer free speech” clause, which opened the door for businesses to push their anti-union position in captive audience meetings. In the 1970s, the NLRB decided that it was acceptable for management to use those meetings to threaten workers with a loss of benefits or even employment if they voted for a union. It later also ruled that management had the right to ban union supporters from attending captive audience meetings and even ban employees from speaking during the meetings.
In 1974, the Supreme Court ruled that businesses did not have to agree to recognize a union regardless of the number of worker-signed cards or names on a petition expressing support for unionization. Instead, they could insist that the NLRB conduct an election. Later NLRB rulings have stretched out the time between card filing and voting and allowed companies to further delay elections by requiring that unfair labor practice charges and company challenges to the proposed bargaining unit be settled before voting. Delays, of course, give companies more time for captive meetings, to threaten dire consequences from a positive vote for unionization, and to intimidate and sometimes fire union activists.
Many more examples can be given. Here are just a few recent ones. NLRB rulings have made it easier for companies to reclassify their workers as independent contractors (thereby removing them entirely from the protection of labor laws). Other rulings have given employers the right to deny union organizers access to company parking lots or other public spaces, even if they are open to the general public, such as cafeterias, and workers the right to use their company email system for communicating about workplace issues even if it is regularly used for nonwork purposes.
As Lawrence Mishel, Lynn Rhinehart, and Lane Windham carefully document in their Economic Policy Institute study of reasons for the decline in private sector union membership, “Though these employer-friendly laws were on the books in the 1940s, 1950s, and 1960s, it was not until the 1970s that employers began to take full advantage of their power.” And take advantage they did. In fact, the authors make a strong case that one of the most important reasons for the steady decline in private sector unionism was the ruthless corporate exploitation of the new legal environment.
A weak National Labor Relations Board
Sadly, even at its best, the NLRB has limited power to protect worker rights. A case in point: if the NLRB actually determines that an employer illegally fired a worker for their pro-union activity—a process that can take up to two years because of a lack of staff—all it can do is order the employer to rehire the worker and pay them their back wages (minus whatever they earned while unemployed) and post a sign in the breakroom acknowledging that the worker was illegally fired.
As Mishel, Rhinehart, and Windham describe:
Workers do not receive monetary damages to compensate them for the economic harms inflicted by their illegal treatment. Unlike other employment laws, workers have no right to bring a lawsuit against the employer for violating their NLRA rights; they are entirely dependent on the agency pursuing their case. In contrast, other employment laws, such as civil rights laws, provide much greater penalties and provide for a private right of action so workers can bring cases on their own and collect attorneys’ fees if they prevail.
Here is a recent real-life example of how the NLRB, even when it acts in support of worker rights, is hamstrung by the class-biased framework underlying the NLRA. A regional director for the National Labor Relations Board ruled in April 2022, in response to charges filed by the Starbucks union, that the company had indeed engaged in illegal actions against union supporters. As reported by the New York Times, the regional director found the company guilty of:
firing employees in retaliation for supporting the union; threatening employees’ ability to receive new benefits if they choose to unionize; requiring workers to be available for a minimum number of hours to remain employed at a unionized store without bargaining over the change, as a way to force out at least one union supporter; and effectively promising benefits to workers if they decide not to unionize.
In response, the regional director ordered top management to record a video that can be distributed to all stores making clear that workers do have the right to engage in pro-union activity. That’s it—no fines. And, of course, the company is appealing the ruling. At the same time, it is unlikely that the company would have been found guilty under the regime of the previous NLRB General Counsel.
Some reasons for hope
President Biden’s proposed budget for fiscal year 2023 calls for an increase in funding for the NLRB from $274 million to $319.4 million. If achieved it would be a big deal. The NLRB’s last budget increase was in 2014 and according to its staff union the agency has lost over 30 percent of its staff since 2010. The lack of staff translates into fewer investigations into unfair labor practices and delays in elections.
But it remains to be seen whether Biden will fight for this increase and if so, whether Democrats will stand firm in the face of Republican opposition. The 2022 fiscal year budget included $301.17 million for the NLRB, which the agency said would allow it to add nearly 150 staff. However, at the last minute, the money disappeared from the final budget agreement. As C.M. Lewis explains:
In the deal-making to reach an omnibus spending bill that could secure Republican votes, Democratic leadership made their priorities clear: and they didn’t include defending the right to organize. Congressional leadership and the White House have both demonstrated a willingness to take a victory lap for proposing increased funding while quietly continuing austerity for the sole federal agency tasked with enforcing the National Labor Relations Act.
More hopeful is the work of General Counsel Jennifer Abruzzo. Under her leadership, the NLRB has been aggressive about responding to worker charges of unfair labor practices. More importantly, Abruzzo is pushing the NLRB to reverse its current position on captive audience meetings. According to an NLRB Office of Public Affairs statement:
National Labor Relations Board General Counsel Jennifer Abruzzo issued a memorandum to all Field offices announcing that she will ask the Board to find mandatory meetings in which employees are forced to listen to employer speech concerning the exercise of their statutory labor rights, including captive audience meetings, a violation of the National Labor Relations Act (NLRA). . . . Forcing employees to attend captive audience meetings under threat of discipline discourages employees from exercising their right to refrain from listening to this speech and is therefore inconsistent with the NLRA.
The memo explains that years ago the Board incorrectly concluded that an employer does not violate the Act by compelling its employees to attend meetings in which it makes speeches urging them to reject union representation. As a result, employers commonly use explicit or implied threats to force employees into meetings about unionization or other statutorily protected activity.
Abruzzo has also filed a brief in a case brought before the NLRB by the Teamsters in which she calls for the immediate reinstatement of the Joy Silk doctrine. Under that doctrine, which shaped NLRB policy some 50 years ago, an employer could be ordered to recognize and bargain with a union if the union was able to show that it was supported by a majority of workers in the bargaining unit. An election would be required only if the employer could demonstrate that its refusal to bargain was based on its good faith doubt about the union’s majority status. Currently, as Fran Swanson explains in an Onlabor blog post, “a bargaining order may only issue in cases where an ‘employer’s misdeeds are so widespread they make a fair election impossible,’ a standard which the brief argues has ‘failed to deter employers’ from interfering with elections.”
Of course, Abruzzo doesn’t have the last word. She has to convince the 5 member NLRB to accept her position on both captive audience meetings and the Joy Luck doctrine. Board members are appointed by the President, with Senate consent, and serve for five years. Each year, the term of one member expires. That means that the majority of the board predates Biden’s election. It is unclear how they will decide.
There is no doubt that if the NLRB receives a long overdue budget increase and Abruzzo is successful, workers will find it easier to organize. At the same time, it would be a serious mistake to believe that changes in labor law by themselves will be enough to ensure the revival of the labor movement. That will require the sustained hard work of rank-and-file organizers. Of course, it’s the combination that offers us the best chance for success. So, let’s keep the spotlight and pressure on the NLRB while continuing to support the kind of smart, aggressive organizing that has companies like Starbucks on the defensive.