#Jennifer Abruzzo

[mostlysignssomeportents]

All bets are off

When unions are outlawed, only outlaws will have unions. Unions don't owe their existence to labor laws that protect organizing activities. Rather, labor laws exist because once-illegal unions were formed in the teeth of violent suppression, and those unions demanded – and got – labor law.

Bosses have hated unions since the start, and they've really hated laws protecting workers. Dress this up in whatever self-serving rationale you want – "the freedom to contract," or "meritocracy" – it all cashes out to this: when workers bargain collectively, value that would otherwise go to investors and executives goes to the workers.

I'm not just talking about wages here, either. If an employer is forced – by a union, or by a labor law that only exists because of union militancy – to operate a safe workplace, they have to spend money on things like fire suppression, PPE, and paid breaks to avoid repetitive strain injuries. In the absence of some force that corrals bosses into providing these safety measures, they can use that money to pay themselves, and externalize the cost of on-the-job injuries to their workers.

The cost and price of a good or service is the tangible expression of power. It is a matter of politics, not economics. If consumer protection agencies demand that companies provide safe, well-manufactured goods, if there are prohibitions on price-fixing and profiteering, then value shifts from the corporation to its customers.

Now, if labor has few rights and consumers have many rights, then bosses can pass their consumer-side losses on to their workers. This is the Walmart story, the Amazon story: cheap goods paid for with low wages and dangerous working conditions. Likewise, if consumer rights are weak but labor rights are strong, then bosses can pass their costs onto their customers, continuing to take high profits by charging more. This is the story of local gig-work ordinances like NYC's, which guaranteed a minimum wage to delivery drivers – restaurateurs responded by demanding the right to add a surcharge to their bills:

https://table.skift.com/2018/06/22/nyc-surcharge-debate/

But if labor and consumer groups act in solidarity, then they can operate as a bloc and bosses and investors have to eat shit. Back in 2017, the pilots' union for American Airlines forced their bosses into a raise. Wall Street freaked out and tanked AA's stock. Analysts for big banks were outraged. Citi's Kevin Crissey summed up the situation perfectly, in a fuming memo: "This is frustrating. Labor is being paid first again. Shareholders get leftovers":

https://www.vox.com/new-money/2017/4/29/15471634/american-airlines-raise

Limiting the wealth of the investor class also limits their power, because money translates pretty directly into political power. This sets up a virtuous cycle: the less money the investor class has to spend on political projects, the more space there is for consumer- and labor-protection laws to be enacted and enforced. As labor and consumer law gets more stringent, the share of the national income going to people who make things, and people who use the things they make, goes up – and the share going to people who own things goes down.

Seen this way, it's obvious that prices and wages are a political matter, not an "economic" one. Orthodox economists maintain the pretense that they practice a kind of physics of money, discovering the "natural," "empirical" way that prices and wages move. They dress this up with mumbo-jumbo like the "efficient market hypothesis," "price discovery," "public choice," and that old favorite, "trickle-down theory." Strip away the doublespeak and it boils down to this: "Actually, your boss is right. He does deserve more of the value than you do":

https://pluralistic.net/2024/09/09/low-wage-100/#executive-excess

Even if you've been suckered by the lie that bosses have a legal "fiduciary duty" to maximize shareholder returns (this is a myth, by the way – no such law exists), it doesn't follow that customers or workers share that fiduciary duty. As a customer, you are not legally obliged to arrange your affairs to maximize the dividends paid by to investors in your corporate landlord or by the merchants you patronize. As a worker, you are under no legal obligation to consider shareholders' interests when you bargain for wages, benefits and working conditions.

The "fiduciary duty" lie is another instance of politics masquerading as economics: even if bosses bargain for as big a slice of the pie as they can get, the size of that slice is determined by the relative power of bosses, customers and workers.

This is why bosses hate unions. It's why the scab presidency of Donald Trump has waged all-out war on unions. Trump just effectively shuttered the National Labor Relations Board, unilaterally halting its enforcement actions and investigations. He also illegally fired one of the Democratic NLRB board members, leaving the agency with too few board members to take any new actions, meaning that no unions can be recognized – indeed, the NLRB can't do anything – for the foreseeable future:

https://www.npr.org/2025/01/28/nx-s1-5277103/nlrb-trump-wilcox-abruzzo-democrats-labor

Trump also fired the NLRB's outstanding General Counsel, Jennifer Abruzzo, who was one of the stars of the Biden administration, who promulgated rules that decisively tilted the balance in favor of labor:

https://pluralistic.net/2023/09/06/goons-ginks-and-company-finks/#if-blood-be-the-price-of-your-cursed-wealth

Trump is playing Grinch here – he's descended upon Whoville to take all the Christmas decorations, in the belief that these are the source of Christmas. But the Grinch was wrong (and so is Trump): Christmas was in the heart of the Whos, and the tinsel and baubles were the expression of that Christmas spirit. Likewise, labor rights come from labor organizing, not the other way around.

Labor rights were enshrined in federal law in 1935, with the National Labor Relations Act. Bosses hated – and hate – the NLRA. 12 years later, they passed the Taft-Hartley Act, which substantially gutted the NLRA. Most notably, Taft-Hartley bans "sympathy strikes" – when unions walk out in support of one another. Sympathy strikes are a hugely powerful way for workers to claim value away from bosses and investors, which is why bosses got rid of them.

But even then, bosses who were honest with themselves would admit that they preferred life under the NLRA to life before it. Remember: labor militancy created the NLRA, not the other way around. When workers didn't have the legal means to organize, they organized by illegal means. When they didn't have legal ways of striking, they struck illegally. The result was pitched battles, even bloodbaths, as cops beat and even killed labor organizers. Bosses hired thugs who committed mass murder – literally. In 1913, strikebreakers working for the Calumet and Hecla Mining Company started a stampede during a union Christmas party that killed 73 people, including many copper miners' children:

https://en.wikipedia.org/wiki/Italian_Hall_disaster

Workers didn't take this lying down. Violence was met with violence. Bombs went off outside factories and stately mansions. There was gunfire and arson. Bosses had to hire armed guards to escort them as they scurried between their estates and their fancy parties and their executive offices. The country was in a state of near-perpetual chaos.

The NLRA created a set of rules for labor/boss negotiations – rules that helped workers claim a bigger slice of the pie without blood in the streets. But the NLRA also had benefits for bosses: unions were obliged to play by its rules, if they wanted to reap its benefits. The NLRA didn't just put a ceiling over boss power – it also put a ceiling over worker militancy. Von Clausewitz says that "war is politics by other means," which implies that politics are war by other means. The alternative to politics isn't capitulation, it's war.

Trump has torn up the rules to the labor game, but that doesn't mean the game ends. That just means there are no rules.

The labor movement has many great organizer/writers, but few can match the incredible Jane McAlevey, who died of cancer last summer (rest in power). In her classic A Collective Bargain, McAlevey describes her organizer training, from a tradition that went back to the days before the National Labor Relations Act:

https://pluralistic.net/2023/04/23/a-collective-bargain/

McAlevey was very clear that labor law owes its existence to union power, not the other way around. She explains very clearly that union organizers invented labor law after they invented unions, and that unions can (and indeed, must) exist separately from government agencies that are charged with protecting labor law. But she goes farther: in Collective Bargain, McAlevey describes how the 2019 LA Teachers' Strike didn't just win all the wage and benefits demands of the teachers, but also got the school district to promise to put a park or playground near every school in the system, and got a ban on ICE agents harassing parents at the school gates.

This wildly successful strike forged bonds among teachers, and between teachers and their communities. These teachers went on to run a political get-out-the-vote campaign in the 2020 elections and elected two Democratic reps to Congress and secured the Dems' majority. McAlevey contrasted the active way good unions involve workers as participants with the thin, anemic way that the Democratic Party engages with supporters – solely by asking them for money in a stream of frothing, clickbait text messages. As McAlevey wrote, "Workplace democracy is a training ground for true national democracy."

Militant labor doesn't just protect labor rights – it protects human rights. Remember: MLK, Jr was assassinated while campaigning for union janitors in Memphis. LA teachers ended ICE sweeps at the school gates. Librarian unions are leading the fight against book bans.

The good news is that public opinion has swung wildly in favor of unions over the past decade. More people want to join unions than at any time in generations. More people support unions that at any time in generations.

The bad news is that union leadership fucking suuuuuuuucks. As Hamilton Nolan writes, union bosses are sitting on vast, heretofore unseen warchests of cash, and they just experienced a four-year period of governmental support for unions unheard of since the Carter administration, and they did fuck all with that opportunity:

https://www.hamiltonnolan.com/p/confirmed-unions-squandered-the-biden

Big unions have effectively stopped trying to organize new workers, even when workers beg them for help forming a union. Union organizing budgets are so small as to be indistinguishable from zero. Despite the record number of workers who want to be in a union, the number of workers who are in a union actually fell during the Biden years.

Indeed, some union bosses actually campaigned for Trump, a notorious scab. Teamsters boss Sean O'Brien spoke at the fucking RNC, a political favor that Trump repaid by killing the NLRB and every labor enforcement action and investigation in the country. Nice one, O'Brien. See you in hell:

https://www.theatlantic.com/politics/archive/2024/08/teamster-union-trump/679513/

Union bosses squandered a historical opportunity to build countervailing power. Now, Trump's stormtroopers are rounding up workers with the goal of illegally deporting them. Fascism is on the rise. Labor and fascism are archenemies. Organized labor has always been the biggest threat to fascism, every time it has reared its head. That's why fascists target unions first. Union bosses cost us an organized force that could effectively defend our friends and neighbors from Trump's deportation stormtroopers:

https://prospect.org/blogs-and-newsletters/tap/2025-01-28-trumps-lawbreaking-also-aimed-at-workers/

Not every union boss is a scab like O'Brien. Shawn Fain, head of the UAW, won an historic strike against all three of the Big Three automakers, and made sure that the new contracts all ran out in 2028, and called on other unions to do the same, so that the country could have a general strike in 2028 without violating the Taft-Hartley Act (Fain was operating on the now-dead assumption that unions had to play by the rules):

https://pluralistic.net/2024/11/11/rip-jane-mcalevey/#organize

A general strike isn't just a strike for workers' rights. Under Trump, a general strike is a strike against Trumpism and all its horrors: kids in cages, forced birth, trans erasure, climate accelerationism – the whole fucking thing.

A general strike would build the worker power to occupy the Democratic Party and force it to stand up for the American people against oligarchy, rather than meekly capitulating to fascism (and fundraising), which is all they know how to do anymore:

https://pluralistic.net/2025/01/10/smoke-filled-room-where-it-happens/#dinosaurs

But before we can occupy the Dems, we have to occupy the unions. We need union bosses who are committed to signing up every worker who wants workplace democracy, and unionizing every workplace in spite of the NLRB, not with its help. We need to go back to our roots, when there were no rules.

That's the world Trump made. We need to make him regret that decision.

If you'd like an essay-formatted version of this post to read or share, here's a link to it on pluralistic.net, my surveillance-free, ad-free, tracker-free blog:

https://pluralistic.net/2025/01/29/which-side-are-you-on/#strike-three-yer-out

[justinspoliticalcorner]

Dave Jamieson at HuffPost:

Federal labor officials issued a ruling Wednesday prohibiting employers from holding mandatory anti-union meetings at work, a long-sought policy objective of unions that want to level the playing field with corporations in organizing campaigns. In its 3-1 decision, the Democratic majority of the National Labor Relations Board said such workplace gatherings — often called “captive audience” meetings due to their obligatory nature — tend to “coerce” employees and therefore violate the law. The board’s lone Republican dissented. The case revolved around the Amazon warehouse in New York City that became the retailer’s first to unionize 2 1/2 years ago. Amazon enlisted managers and outside consultants to hold meetings where they fed employees anti-union talking points in the run-up to the vote. The company spent millions on its campaign against the union.

NLRB General Counsel Jennifer Abruzzo, an appointee of President Joe Biden, has argued that the meetings violate workers’ rights when employees have no choice but to attend and subject themselves to the company’s messaging. Abruzzo, who prosecutes cases before the board, has said companies should still be free to make their case against unions — they just shouldn’t be able to force workers to listen to it. The board ruled that such meetings “have a reasonable tendency to interfere with and coerce employees in the exercise” of their rights, including “whether or not to unionize.” The law “does not license employers to compel employees, on pain of discipline or discharge, to attend meetings where they are forced to listen to the employer’s views,” the majority wrote.

In siding with Abruzzo and the Amazon workers, the board members overturned an NLRB precedent from 1948 that allowed for mandatory attendance under threat of punishment. They also set up what could be a protracted legal fight over the ruling, with employer groups all but certain to challenge the decision on First Amendment grounds.

[...] Trump is expected to fire Abruzzo on his first day in office and nominate a general counsel who will undo much of her agenda. (The general counsel he installed during his first presidency was hostile to unions and stood accused of trying to gut his own agency.) Trump will also be able to change the board, which normally has five members, to a Republican majority as its staggered seats open up during his presidency.

Victory for workers’ rights: The NLRB under the Biden Administration bans captive audience meetings.

[a-method-in-it]

The NLRB has been around since the National Labor Relations Act passed in 1935

It got pretty fucked up under Trump, but has been based as hell under Biden. (Seriously, labor policy might be one of the few things about the Biden administration that I have almost no quarrels with.)

Billionaires are a fucking scourge.

Jeff Bezos's Amazon and Elon Musk's SpaceX are both fighting in court to have the National Labor Relations Board declared unconstitutional. Starbuck's and Trader Joe's joined them in separate lawsuits. All of these companies have a disgraceful history of worker abuse and union busting. All of them have been charged by the NLRB with hundreds of violations of workers’ organizing rights The NLRB is standing up to their union busting. That’s why they’re trying to destroy the NLRB. I'm going to do my best to keep you all informed about this case as it snakes its way through the courts. The future of unions may depend on the final verdict. http://dlvr.it/T49LM1

[reasonsforhope]

Version that doesn't require sign-in.

"Hot Labor Summer just became a scorcher.

[On August 25, 2023], the National Labor Relations Board released its most important ruling in many decades. In a party-line decision in Cemex Construction Materials Pacific, LLC, the Board ruled that when a majority of a company’s employees file union affiliation cards, the employer can either voluntarily recognize their union or, if not, ask the Board to run a union recognition election. If, in the run-up to or during that election, the employer commits an unfair labor practice, such as illegally firing pro-union workers (which has become routine in nearly every such election over the past 40 years, as the penalties have been negligible), the Board will order the employer to recognize the union and enter forthwith [a.k.a. immediately] into bargaining.

The Cemex decision was preceded by another, one day earlier, in which the Board, also along party lines, set out rules for representation elections which required them to be held promptly after the Board had been asked to conduct them, curtailing employers’ ability to delay them, often indefinitely.

Taken together, this one-two punch effectively makes union organizing possible again, after decades in which unpunished employer illegality was the most decisive factor in reducing the nation’s rate of private-sector unionization from roughly 35 percent to the bare 6 percent at which it stands today...

“This is a sea change, a home run for workers,” said Brian Petruska, an attorney for the Laborers Union who authored a 2017 law review article on how to effectively restore to workers their right to collective bargaining enshrined in the 1935 National Labor Relations Act, which was all but nullified by the act’s weakening over the past half-century. Taken together, Petruska added, last week’s decisions recreate “a system with no tolerance for employers’ coercion of their employees” when their employees seek their legal right to collective bargaining...

Since the days of Lyndon Johnson, every time that the Democrats have controlled the White House and both houses of Congress, they’ve tried to put some teeth back into the steadily more toothless NLRA. But they’ve never managed to muster the 60 votes needed to get those measures through the Senate. The Cemex ruling actually goes beyond much of what was proposed in those never-enacted bills."

-via The American Prospect, August 28, 2023

--

Note: I didn't include it because the paragraphs about it went super into the weeds, but the reason all of this is happening is because of the NRLB's general counsel, Jennifer Abruzzo, who was appointed by Biden. In fact, according to this article, this "secures Abruzzo’s place as the most important public official to secure American workers’ rights since New York Sen. Robert Wagner, who authored the NLRA in 1935." Voting matters

[misfitwashere]

Does anyone need more proof that Trump is fronting for the oligarchs and doesn't give a shite about workers?

ROBERT REICH

JAN 29

Friends,

In his ongoing rampage against the laws of the land, Trump yesterday fired National Labor Relations Board acting chair Gwynne Wilcox — despite her congressional appointment not being up until 2028.

Wilcox’s firing closes down the NLRB because it’s left with just two members, and the Supreme Court has ruled that the Board needs at least three to issue any rulings.

Trump also fired NLRB General Counsel Jennifer Abruzzo, leaving Board attorneys who investigate employee and employer complaints without any guidance. 

Presto — American workers are no longer protected from illegal firings or unfair labor practices by their employers. The National Labor Relations Act of 1935 is effectively gone. Employers can now reek havoc on their workers. 

Of course, most employers are already doing this, but at least the threat of unionization kept some from blatant bullying.

The backstory here is about power. 

Score another one for the oligarchs. 

Across America big corporations are treating their hourly workers like shite. Unions are about the only countervailing economic force and one of the last remaining political forces pushing for worker health and safety. 

But the latest data (out Tuesday) shows that unionized workers continue to lose ground — now down to under 10 percent of the workforce. 

This suits the American oligarchy just fine. As I’ve noted, Trump their frontman.

Elon Musk, the richest person in the world and key Trump advisor — who over the years has compiled a truck load of violations from the N.L.R.B., including firing workers who tried to form a union, and who kept his Tesla plant open during the pandemic in violation of state law — says he’s “opposed to the idea of unions.” 

Billionaire oligarch Jeff Bezos, the second-richest person in America, who also stood prominently before Trump when he was sworn in January 20, has been waging an unrelenting war on Amazon’s warehouse workers. (When workers in a Quebec warehouse recently voted to unionize, Bezos responded by having the company order the closure of every Amazon warehouse in the province.)

Amazon owns Whole Foods. On Monday, workers in a Philadelphia Whole Foods market voted to unionize. Bezos is already taking aim. 

An overwhelming majority of working-class people — especially men without college degrees, who form the bulk of hourly workers in Musk’s Tesla and Bezos’s Amazon — voted for Trump on November 5. 

There are really two questions here: 

(1) How much more proof does the American working class need that Trump is not on their side but on the side of the oligarchs, who are siphoning more and more of the nation’s wealth from working people to themselves? 

(2) When will Democrats have the backbone to tell this to working-class Americans, and come down firmly against the oligarchy?

[ausetkmt]

SpaceX and Amazon are among the companies that have filed lawsuits challenging the constitutionality of the National Labor Relations Board.

In the nearly four years that Joe Biden has been president, the National Labor Relations Board has taken an assertive — some say overly aggressive — approach to protecting workers' rights to organize and collectively bargain.

Now, SpaceX and Amazon are at the forefront of a corporate-led effort to monumentally change the labor agency. On Monday, attorneys for the two companies will try to convince a panel of judges at the Fifth Circuit Court of Appeals that the labor agency, created by Congress in 1935, is unconstitutional.

Their lawsuits are among more than two dozen challenges brought by companies who say the NLRB's structure gives it unchecked power to shape and enforce labor law.

A ruling in favor of the companies could make it much harder for workers to form unions and take collective action in pursuit of better wages and working conditions.

That would be an enormous setback for labor groups, who have enjoyed unprecedented support from the Biden administration, and a win for companies that have spent considerable amounts of resources over the past four years trying to keep unions out of their workplaces.

Complicating matters is the fact that President-elect Donald Trump has named SpaceX founder and CEO Elon Musk to co-lead a new commission focused on dismantling government bureaucracy, slashing spending and jobs. Whether the NLRB is one of the agencies Musk will advise on remains unclear.

Ultimately, these cases could make their way to the Supreme Court.

Board found fault at Amazon and Space X

The lawsuits brought by Amazon and SpaceX came after the NLRB issued complaints of its own. Agency investigations found the companies had violated the rights of their employees.

At Amazon, the issue was the company's refusal to collectively bargain with the Amazon Labor Union. Workers at Amazon's Staten Island, N.Y., warehouse voted to unionize in 2022.

At SpaceX, the complaint involved eight employees who said they were fired in retaliation for speaking critically of Musk.

Both companies argue that the labor agency's structure violates the separation of powers.

"The NLRB routinely exercises authority to prosecute alleged violators of federal labor law, define the legal standards that govern the prosecutions, and weigh the facts necessary to find a violation — with only limited judicial review by Article III courts," attorneys for SpaceX wrote in a court filing.

The companies also find fault with the president's inability to fire NLRB board members, who serve five-year terms, and in SpaceX's case, its administrative law judges.

Additionally, they argue the NLRB's system for adjudicating cases denies them the right to a trial by jury.

Jennifer Abruzzo, general counsel for the National Labor Relations Board, sits at agency headquarters in Washington, D.C., on Monday, June 13, 2022. Amanda Andrade-Rhoades

NLRB General Counsel Jennifer Abruzzo, a Biden appointee, calls the lawsuits a distraction, pointing to the agency's 90-year history of governing labor-management relations.

"We are trying to hold violators of our statute accountable," she said at the National Press Club in October. "It would be chaos if the agency was not allowed to perform its functions and do it properly."

Anticipating a slowdown in enforcement

Workers' advocates are bracing for a slowdown in labor law enforcement in a second Trump administration.

For starters, Trump is expected to fire Abruzzo immediately, exercising power he does hold. (Biden fired Trump's appointee to that position on his first day in office.)

Since 2021, Abruzzo, who acts as the NLRB's prosecutor, has taken a broad view of the protections labor law offers private-sector employees. She has worked to remove barriers to organizing, most recently winning a board ruling outlawing "captive audience" meetings, or mandatory meetings at which employers try to dissuade workers from unionizing.

Trump is expected to replace Abruzzo with someone friendly to employers, who will set a new tone for enforcement. Last time around, Trump's pick for the job was Peter Robb, a management-side labor attorney who served as lead counsel for President Ronald Reagan during the air traffic controllers' strike.

In the SpaceX and Amazon cases, all expectations are that a Trump-appointed general counsel will not fight any ruling favorable to the companies. However, similar lawsuits filed elsewhere in the country could result in conflicting court decisions.

[nando161mando]

Trump Ousts Labor Prosecutor Who Pushed Broader Worker Rights

https://www.bloomberg.com/news/articles/2025-01-28/trump-fires-nlrb-general-counsel-jennifer-abruzzo?accessToken=eyJhbGciOiJIUzI1NiIsInR5cCI6IkpXVCJ9.eyJzb3VyY2UiOiJTdWJzY3JpYmVyR2lmdGVkQXJ0aWNsZSIsImlhdCI6MTczODA0NDU3MywiZXhwIjoxNzM4NjQ5MzczLCJhcnRpY2xlSWQiOiJTUVNCTTlUMEcxS1cwMCIsImJjb25uZWN0SWQiOiJDQThGQ0Y4NkY1QjY0ODlCODA4ODkwNTFBNjMxRERBRCJ9.X3-2wWPj_m7Ef39_-TnjwoHOki3vNE5WcSUjtT-97gs

[iww-gnv]

The National Labor Relations Board is poised to release a number of decisions in the next two weeks with the potential to significantly alter the nation’s labor doctrine in favor of unions, as Democratic board member Gywnne Wilcox’s term draws to a close later this month. The cases, which have been fully briefed, are part of an effort NLRB General Counsel Jennifer Abruzzo outlined two years ago to overturn roughly 50 board precedents. The board has already adopted several of her desired changes to labor law, including protections for workers using profanity and limiting handbook provisions that could interfere with employees’ rights to organize. Wilcox, a former union lawyer who has served on the board since 2021, is up for confirmation in the Senate, but lawmakers didn’t bring her renomination to a vote before the August recess. Her current term will end Aug. 27.

[Read the rest]

[azspot]

Harris should certainly want to be at least as good as her predecessor on money in politics. Khan’s anti-monopoly agenda, Chopra’s crusade against junk fees, National Labor Relations Board General Counsel Jennifer Abruzzo’s support for unions, and others also poll extraordinarily well, especially among young people. Throwing these effective, progressive regulators to the curb in favor of Wall Streeters and corporate hacks would be worse than “more of the same,” it would actively pull the Democratic Party further from the public’s preferences.

Choosing the People Over the Billionaires

[moleshow]

Tell me who Jennifer Abruzzo is and what the Cemex decision did. Quickly.

[mostlysignssomeportents]

NLRB rules that any union busting triggers automatic union recognition

Tonight (September 6) at 7pm, I'll be hosting Naomi Klein at the LA Public Library for the launch of Doppelganger.

On September 12 at 7pm, I'll be at Toronto's Another Story Bookshop with my new book The Internet Con: How to Seize the Means of Computation.

American support for unions is at its highest level in generations, from 70% (general population) to 88% (Millenials) – and yet, American unionization rates are pathetic.

That's about to change.

The National Labor Relations Board just handed down a landmark ruling – the Cemex case – that "brought worker rights back from the dead."

https://prospect.org/labor/2023-08-28-bidens-nlrb-brings-workers-rights-back/

At issue in Cemex was what the NLRB should do about employers that violate labor law during union drives. For decades, even the most flagrantly illegal union-busting was met with a wrist-slap. For example, if a boss threatened or fired an employee for participating in a union drive, the NLRB would typically issue a small fine and order the employer to re-hire the worker and provide back-pay.

Everyone knows that "a fine is a price." The NLRB's toothless response to cheating presented an easily solved equation for corrupt, union-hating bosses: if the fine amounts to less than the total, lifetime costs of paying a fair wage and offering fair labor conditions, you should cheat – hell, it's practically a fiduciary duty:

https://www.jstor.org/stable/10.1086/468061

Enter the Cemex ruling: once a majority of workers have signed a union card, any Unfair Labor Practice by their employer triggers immediate, automatic recognition of the union. In other words, the NLRB has fitted a tilt sensor in the American labor pinball machine, and if the boss tries to cheat, they automatically lose.

Cemex is a complete 180, a radical transformation of the American labor regulator from a figleaf that legitimized union busting to an actual enforcer, upholding the law that Congress passed, rather than the law that America's oligarchs wish Congress had passed. It represents a turning point in the system of lawless impunity for American plutocracy.

In the words of Frank Wilhoit, it is is a repudiation of the conservative dogma: "There must be in-groups whom the law protects but does not bind, alongside out-groups whom the law binds but does not protect":

https://crookedtimber.org/2018/03/21/liberals-against-progressives/#comment-729288

It's also a stunning example of what regulatory competence looks like. The Biden administration is a decidedly mixed bag. On the one hand there are empty suits masquerading as technocrats, champions of the party's centrist wing (slogan: "Everything is fine and change is impossible"):

https://pluralistic.net/2023/01/10/the-courage-to-govern/#whos-in-charge

But the progressive, Sanders/Warren wing of the party installed some fantastically competent, hard-charging, principled fighters, who are chapter-and-verse on their regulatory authority and have the courage to use that authority:

https://pluralistic.net/2022/10/18/administrative-competence/#i-know-stuff

They embody the old joke about the photocopier technician who charges "$1 to kick the photocopier and $79 to know where to kick it." The best Biden appointees have their boots firmly laced, and they're kicking that mother:

https://pluralistic.net/2023/08/16/the-second-best-time-is-now/#the-point-of-a-system-is-what-it-does

One such expert kicker is NLRB General Counsel Jennifer Abruzzo. Abruzzo has taken a series of muscular, bold moves to protect American workers, turning the tide in the class war that the 1% has waged on workers since the Reagan administration. For example, Abruzzo is working to turn worker misclassification – the fiction that an employee is a small business contracting with their boss, a staple of the "gig economy" – into an Unfair Labor Practice:

https://pluralistic.net/2022/01/10/see-you-in-the-funny-papers/bidens-legacy

She's also waging war on robo-scab companies: app-based employment "platforms" like Instawork that are used to recruit workers to cross picket lines, under threat of being blocked from the app and blackballed by hundreds of local employers:

https://pluralistic.net/2023/07/30/computer-says-scab/#instawork

With Cemex, Abruzzo is restoring a century-old labor principle that has been gathering dust for generations: the idea that workers have the right to organize workplace gemocracies without fear of retaliation, harassment, or reprisals.

But as Harold Meyerson writes for The American Prospect, the Cemex ruling has its limits. Even if the NLRB forces and employer to recognize a union, they can't force the employer to bargain in good faith for a union contract. The National Labor Relations Act prohibits the Board from imposing a contract.

That's created a loophole that corrupt bosses have driven entire fleets of trucks through. Workers who attain union recognition face years-long struggles to win a contract, as their bosses walk away from negotiations or offer farcical "bargaining positions" in the expectation that they'll be rejected, prolonging the delay.

Democrats have been trying to fix this loophole since the LBJ years, but they've been repeatedly blocked in the senate. But Abruzzo is a consummate photocopier kicker, and she's taking aim. In Thrive Pet Healthcare, Abruzzo has argued that failing to bargain in good faith for a contract is itself an Unfair Labor Practice. That means the NLRB has the authority to act to correct it – they can't order a contract, but they can order the employer to give workers "wages, benefits, hours, and such that are comparable to those provided by comparable unionized companies in their field."

Mitch McConnell is a piece of shit, but he's no slouch at kicking photocopiers himself. For a whole year, McConnell has blocked senate confirmation hearings to fill a vacant seat on the NLRB. In the short term, this meant that the three Dems on the board were able to hand down these bold rulings without worrying about their GOP colleagues.

But McConnell was playing a long game. Board member Gwynne Wilcox's term is about to expire. If her seat remains vacant, the three remaining board members won't be able to form a quorum, and the NLRB won't be able to do anything.

As Meyerson writes, centrist Dems have refused to push McConnell on this, hoping for comity and not wanting to violate decorum. But Chuck Schumer has finally bestirred himself to fight this issue, and Alaska GOP senator Lisa Murkowski has already broken with her party to move Wilcox's confirmation to a floor vote.

The work of enforcers like DoJ Antitrust Division boss Jonathan Kanter, FTC chair Lina Khan, and SEC chair Gary Gensler is at the heart of Bidenomics: the muscular, fearless deployment of existing regulatory authority to make life better for everyday Americans.

But of course, "existing regulatory authority" isn't the last word. The judges filling stolen seats on the illegitimate Supreme Court had invented the "major questions doctrine" and have used it as a club to attack Biden's photocopier-kickers. There's real danger that Cemex – and other key actions – will get fast-tracked to SCOTUS so the dotards in robes can shatter our dreams for a better America.

Meyerson is cautiously optimistic here. At 40% (!), the Court's approval rating is at a low not seen since the New Deal showdowns. The Supremes don't have an army, they don't have cops, they just have legitimacy. If Americans refuse to acknowledge their decisions, all they can do it sit and stew:

https://pluralistic.net/2023/05/26/mint-the-coin-etc-etc/#blitz-em

The Court knows this. That's why they fume so publicly about attacks on their legitimacy. Without legitimacy, they're nothing. With the Supremes' support at 40% and union support at 70%, any judicial attack on Cemex could trigger term-limits, court-packing, and other doomsday scenarios that will haunt the relatively young judges for decades, as the seats they stole dwindle into irrelevance. Meyerson predicts that this will weigh on them, and may stay their hands.

Meyerson might be wrong, of course. No one ever lost money betting on the self-destructive hubris of Federalist Society judges. But even if he's wrong, his point is important. If the Supremes frustrate the democratic will of the American people, we have to smash the Supremes. Term limits, court-packing, whatever it takes:

https://pluralistic.net/2020/09/20/judicial-equilibria/#pack-the-court

And the more we talk about this – the more we make this consequence explicit – the more it will weigh on them, and the better the chance that they'll surprise us. That's already happening! The Supremes just crushed the Sackler opioid crime-family's dream of keeping their billions in blood-money:

https://pluralistic.net/2023/08/11/justice-delayed/#justice-redeemed

But if it doesn't stop them? If they crush this dream, too? Pack the court. Impose term limits. Make it the issue. Don't apologize, don't shrug it off, don't succumb to learned helplessness. Make it our demand. Make it a litmus test: "If elected, will you vote to pack the court and clear the way for democratic legitimacy?"

Meanwhile, Cemex is already bearing fruit. After an NYC Trader Joe's violated the law to keep Trader Joe's United from organizing a store, the workers there have petitioned to have their union automatically recognized under the Cemex rule:

https://truthout.org/articles/trader-joes-union-files-to-force-company-to-recognize-union-under-new-nlrb-rule/

With the NLRB clearing the regulatory obstacles to union recognition, America's largest unions are awakening from their own long slumbers. For decades, unions have spent a desultory 3% of their budgets on organizing workers into new locals. But a leadership upset in the AFL-CIO has unions ready to catch a wave with the young workers and their 88% approval rating, with a massive planned organizing drive:

https://prospect.org/labor/labors-john-l-lewis-moment/

Meyerson calls on other large unions to follow suit, and the unions seem ready to do so, with new leaders and new militancy at the Teamsters and UAW, and with SEIU members at unionized Starbucks waiting for their first contracts.

Turning union-supporting workers into unionized workers is key to fighting Supreme Court sabotage. Organized labor will give fighters like Abruzzo the political cover she needs to Get Shit Done. A better America is possible. It's within our grasp. Though there is a long way to go, we are winning crucial victories all the time.

The centrist message that everything is fine and change is impossible is designed to demoralize you, to win the fight in your mind so they don't have to win it in the streets and in the jobsite. We don't have to give them that victory. It's ours for the taking.

If you'd like an essay-formatted version of this post to read or share, here's a link to it on pluralistic.net, my surveillance-free, ad-free, tracker-free blog:

https://pluralistic.net/2023/09/06/goons-ginks-and-company-finks

[justinspoliticalcorner]

Dave Jamieson at HuffPost:

Last week, attorneys for SpaceX and Amazon began arguing cases in federal appeals court that could upend the U.S. collective bargaining system that’s been in place since the New Deal. The aerospace company, owned by billionaire Elon Musk, and the world’s largest online retailer have both been accused of violating their workers’ rights. To defend themselves, they now claim that the structure of the agency enforcing the law, the National Labor Relations Board, is unconstitutional. Powerful employers mounted similar — and ultimately unsuccessful — legal challenges against the NLRB after its founding 89 years ago during the Great Depression. But there is one crucial difference today: a right-wing judiciary shaped by President-elect Donald Trump that’s steadily chipping away at the regulatory state.

The repercussions could be immense. The NLRB oversees private-sector union elections and investigates thousands of allegations of illegal union-busting every year. Although it barely has enough funding to enforce a highly imperfect law, the labor board is often all that employees have to turn to when companies violate their rights to form unions or speak up about working conditions. Other employers accused of breaking labor law have adopted the arguments of SpaceX and Amazon, and a slew of similar cases are working their way through the federal court system. The question could eventually end up before the Supreme Court, where a conservative supermajority could all but gut the agency with an aggressive ruling in corporations’ favor. The litigation falls against the backdrop of a new Trump administration that may fire the board’s Democratic members before their terms are up, or decline to defend the agency’s constitutionality in court. Though workers and unions are accustomed to a corporate-friendly takeover of the board following a GOP presidential victory, they now face the prospect of the board falling into dysfunction.

[...]

‘A Perilous Place’

The constitutional challenges worry not just unions and their attorneys but many of the workers who’ve turned to the board for help. The NLRB has no ability to fine employers or seek damages for workers who’ve been illegally fired or retaliated against, and its cases often drag on for years due to appeals. But it still can serve as a check against companies’ worst behavior and deliver some justice to employees who’ve been wronged.

Erin Zapcic, who helped lead a union organizing effort at Medieval Times, said her blood “ran cold” when she learned about the SpaceX case. [...] Congress passed the law establishing the labor board in 1935, to create order around collective bargaining at a time of economic and social upheaval. The independent NLRB has a bipartisan five-member board in Washington that reviews decisions handed down by administrative law judges. It also has a prosecutorial arm led by a general counsel. The president gets to nominate the general counsel and new board members as their staggered terms end, reshaping the agency’s agenda when the White House changes hands. The cases brought by SpaceX, Amazon and other employers attack the board on several grounds. They claim that the board members and administrative law judges are unconstitutionally protected from removal by the president, and that the way the NLRB handles unfair labor practices violates the employers’ right to a jury trial.

[...] Jennifer Abruzzo, the board’s current general counsel appointed by President Joe Biden, has called the lawsuits a distraction from the companies’ own alleged lawbreaking. Her office has accused SpaceX of illegally firing several workers because they had criticized Musk, and Amazon of refusing to bargain with the Amazon Labor Union after its groundbreaking 2022 election victory at a New York warehouse.

[...]

‘A Pandora’s Box’

Despite his glaring conflicts of interest as SpaceX’s owner, Trump ally Musk now has the president-elect’s ear and could end up advising him on NLRB matters. That includes whether to fire board members, who to replace them with and whether the Justice Department should defend the agency against Musk’s lawsuit. Trump’s only labor pick so far is surprisingly moderate: For labor secretary he has tapped outgoing Rep. Lori Chavez-DeRemer, an Oregon Republican who has supported pro-union legislation. But his approach to the NLRB may be far less gentle, especially given Musk’s history with the agency. SpaceX has called the labor board’s structure “the very definition of tyranny.” Jeff Hauser, director of the Revolving Door Project, a nonprofit that tracks corporate influence on the executive branch, said he finds Musk’s cost-cutting advisory role to Trump particularly concerning, since it won’t have the same kind of oversight as a Senate-confirmed Cabinet position. He doesn’t believe Musk’s influence bodes well for workers or the NLRB. “He hates unions almost as much as he hates trans people,” Hauser said. (Musk has a long history of making derogatory comments about transgender people, including his own child.)

Elon Musk and his hatred for unions knows no bounds.

[apidae]

It may sound weird to say, but I find the plainness of this dynamic comforting. There is no need for anxiety. All of the questions are answered up front. Will my company treat me fairly? No. Will the boss do the right thing and look out for us? No. Now that we have a union, can we take it easy? No. Now that we have a contract, can we assume the company will follow it? No. Won’t the company follow the laws that protect workers? No. Won’t the regulators and the courts enforce the laws that protect workers? No. Won’t the elected officials stand up on our behalf? No. Your employer will hold you down and drown you in a pool of the lowest possible wages unless you use your collective power to prevent that from happening. Better take care of yourselves, together. There will be times and places when things will go workers’ way, and that’s nice. There will sometimes be nice bosses and supportive politicians and Jennifer Abruzzos at the NLRB, and that’s something to be enjoyed. But none of that, I promise you, lasts forever under capitalism. The pendulum will swing. Right wing courts will wipe away your legal protections and greedy investors will install a cruel boss and racist voters will boot the friendly Congressman. No need to cry when it happens. We know it will happen. And we know, most importantly, that we still hold in our hands the power of our own labor. The one thing they can’t take away. We do the work. If they won’t do the right thing, we won’t work. And upon that foundation, we can build the whole thing over again. — The Hammer, Not the Handshake | Hamilton Nolan

[carriesthewind]

Anyway here's some actual straightforwardly positive legal news:

"In the memo, sent to regional offices, General Counsel Jennifer Abruzzo addressed what had been one of the largest questions that resulted from the ruling: Does it retroactively void broad non-disparagement agreements that were signed prior to the February ruling? Abruzzo wrote that the decision does, in fact, have “retroactive application,” meaning that already-signed and “overly broad” non-disparagement clauses are no longer considered valid by the NLRB.

...

Additionally, Abruzzo provided clarification around what non-disparagement and confidentiality clauses may still be considered legal. The provisions, she said, must be “narrowly-tailored.” In the case of confidentiality, the clause must serve to keep proprietary trade information secret “for a period of time based on legitimate business justifications may be considered lawful,” but must not have “a chilling effect that precludes employees from assisting others” or communicating with the media, a union, or other third parties.

With regards to non-disparagement, Abruzzo similarly said the provision must not only be both “narrowly-tailored” and “justified,” but limited to statements by an employee that fit the legal definition of defamation, meaning they are purposefully and maliciously untrue."

(The full guidance is linked in the article for my fellow nerds.)