The general counsel of the National Labor Relations Board, a former management-side attorney scheduled to serve until fall, was told by the administration that he could either resign or be fired. When Peter Robb refused to step down, Biden replaced him with a stand-in and then with a former union attorney and agency veteran, who is now in her fifth month holding one of the government's most pivotal workplace.
The 1935 National Labor Relations Act establishes private-sector workers' organizing and protest rights. The law doesn't allow workers to file private lawsuits to enforce their rights, and it restricts states from doing it themselves. The responsibility for prosecuting cases is with the NLRB, whose general counsel can decide which cases get prosecuted and which ones the agency's five members have the chance to consider.
Abruzzo joined the Communications Workers of America in November of last year and has an ambitious agenda. In a memo issued a few weeks after her July confirmation, she signaled interest in challenging a number of precedents on issues including "permanent replacement" of striking workers and the use of workplace email systems. She is prosecuting the companies for firing workers who organized against them. Both companies denied wrongdoing.
Abruzzo spoke with Businessweek. The interview has been edited to make it clearer.
Employees have the right to engage in collective action about working conditions under the National Labor Relations Act. What do you understand about who and what that includes?
People have no recourse but to come to us. The common law defines an employee as an individual who provides services for an entity that has the right to control some of their working conditions.
Some people at the company felt that they were enabling conduct that could affect their co-workers or their communities. That is a valid protest.
Any activity that an employee engages in that is objectively a step towards inducing, initiation, or preparing for group action to improve their lot as employees means they are engaged in protected concerted activity. Social justice, economic justice, and racial justice advocacy are included. The employer can control whether people of color get harassed and discriminated against at their workplace, if it includes symbolic speech like wearing a BLM slogan on your mask.
It would fall under protected concerted activity if there is a relationship with their interests as employees.
If a conservative employee wanted to wear a mask to protest diversity and inclusion programs at their workplace, would that also be protected?
The person who is not a fan of the Black Lives Matter movement has the right to try to get support for their position. For some people it may mean one thing, and for others it may mean something else, but we are focused on protecting the rights of workers to engage collectively to improve conditions on the ground. If someone had a mask that said "BLM" with an X through it, that would be similar to someone who just had "BLM", in terms of it being protected concerted activity.
If gig workers are dispatched by an app and the company says that they are not employees, does that affect your view on whether they are employees?
No. I think there are many workers in the gig economy who are not classified as independent contractors. It isn't like all or none. Every case is unique.
The attorney for the company says that the National Labor Relations Board has never before found that workers have the right to protest over a company's choice of clients.
If workers feel they can change their employer's model, I don't think there's anything wrong with that. Some people at the company felt that they were enabling conduct that could affect their co-workers. That is a valid protest to try to get your employer to agree that you shouldn't be INRDeals INRDeals INRDeals INRDeals INRDeals INRDeals INRDeals INRDeals INRDeals INRDeals INRDeals INRDeals INRDeals INRDeals INRDeals INRDeals INRDeals INRDeals INRDeals INRDeals INRDeals INRDeals INRDeals INRDeals INRDeals INRDeals INRDeals INRDeals INRDeals INRDeals INRDeals INRDeals INRDeals INRDeals INRDeals INRDeals INRDeals INRDeals INRDeals
Penalties like reinstating workers with back pay and posting a notice promising to follow the law are not allowed by the National Labor Relations Board. Why should the agency be taken seriously by workers or employers?
The PRO Act would amend the statute to allow for more severe damages. We have weapons in our arsenal that we need to be using fully, even under the current statute. We use injunctive relief, where we seek an injunction against an employer who is trying to stop the organizing drives.
I have asked the regional directors to not fire that person if there are significant threats, because I plan on pushing that even further.
We need to do a better job of looking atquential damages. If someone had to take out their 401(k) money because they were discharged, the employer would have to pay for the 401(k) penalties, credit card late fees, or trainings for new certifications.
You have signaled interest in challenging the precedent that allows companies to refuse to recognize a union when a majority of workers sign cards. Why?
We have seen an abuse of our processes where an employer will not recognize a majority of workers if they file an election petition with the National Labor Relations Board.
The employer is campaigning against the union before the election. The intent is to undermine the employees free choice. There could be an abuse of our processes if we promoted the delay.
Are you worried that testing the boundaries on these issues will cause conservative judges to change precedents in the other direction?
There is always a worry. I'm here to protect workers. We will go after a violation if I see one.
Labor law is a niche. I am not sure if all judges understand all the nuances. We try to educate them. The team is very persuasive.
Some employers will say that if they have to tolerate offensive speech by activist workers, or masks with an X over "BLM", that prevents them from following civil rights obligations.
The Civil Rights Act is trying to stop discrimination. The way to get workers to talk about these issues is by empowering them. I don't see it as a tension.
Employers are saying that if they have a choice between violating the Civil Rights Act or violating the National Labor Relations Act, they will violate it. There is no reason for you to be having that debate.
Read next about workers pressing for power in the U.S. labor movement.
