Labor laws became more pro-business over time, but it's possible to turn the tide
If you follow the news, it must seem like joining a union is a step outside the norms of U.S. law. After all, 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 require them to participate in meetings with managers where they are routinely told lies about the consequences of unionization, and refuse to negotiate a contract even after workers have successfully voted to unionize.
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 reinterpreted the country’s labor laws in ways that give employers a free pass to engage in a variety of anti-worker actions. Another reason is the U.S. Congress refuses to adequately fund the NLRB, leaving the agency unable to hire sufficient staff to do the required investigations of worker complaints and oversee elections.
President Joe Biden took two actions offering 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, it shouldn’t have to be so difficult — 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 become increasingly business -— not worker — friendly. For example, the NLRB originally required employers to remain neutral when workers considered whether to unionize. Then, in 1941, the Supreme Court ruled 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 what is known as the “employer free speech” clause into the National Labor Relations Act, which opened the door for businesses to push their anti-union position in captive audience meetings. In the 1970s, the NLRB decided 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. Later, it decided management also had the right to ban union supporters from attending those meetings and even ban employees from speaking during the meetings.
In 1974, the Supreme Court ruled 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. Recent NLRB rulings have continued to strengthen employer rights at workers’ expense.
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 an employer illegally fired a worker for their pro-union activity — a process that can take up to two years — 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 the worker was illegally fired.
Here is a recent example of how the NLRB is hamstrung by the class-biased framework underlying the National Labor Relations Act. In April, as reported by the New York Times, a regional director of the NLRB found Starbucks 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 and distribute it 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.
Some reasons for hope
Biden’s proposed budget for fiscal year 2023 calls for an increase in funding for the NLRB from $274 million to $319.4 million. The NLRB’s last budget increase was in 2014, and according to its staff union, the agency lost over 30% of its staff since 2010. The lack of staff translates into fewer investigations into unfair labor practices and delays in elections. However, 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.
More hopeful is the work of General Counsel Jennifer Abruzzo. Under her leadership, the NLRB aggressively responds to worker charges of unfair labor practices. Moreover, as noted above, she is also pushing the NLRB to declare captive audience meetings a violation of the National Labor Relations Act and to reclaim its authority to order an employer to recognize and bargain with a union if the union is able to show it enjoys the support of a majority of workers in the bargaining unit. Of course, Abruzzo doesn’t have the last word. She has to convince the five-member NLRB to agree, and it is unclear how they will decide.
There is no doubt 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 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.
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