The general counsel of the National Labor Relations Board, a federal agency founded in 1935 to protect the right of private employees to organize in order to improve their working conditions, doesnât come off as either a frumpy bureaucrat or a firebrand. Jennifer Abruzzo has the look and demeanor of a fun art teacher. Her shoulder-length curly hair and thin-rimmed glasses frame a face that could be 45 or 65 (sheâs 59). On the day I met her in her corner office, she was wearing a navy-blue jumpsuit with a green scarf in place of a tie and bright magenta nail polish. A bookshelf running along one wall is filled with huge accordion folders stuffed with papers, and a framed illustration of Ruth Bader Ginsburg displaying the words âWomen belong in all places where decisions are being madeâ sits atop it. As we talk, she sips from a large mug that identifies her as the âBest Grandma Ever.â A credenza next to her desk is lined with family photos. She travels to the Carolinas to babysit her sonâs two kids. She remembers the birthdays of everyone she works with.
It would be easy to underestimate her. But ask people who know her what sheâs like and the same words keep coming up. Energetic. Innovative. Hardworking. A force of nature.
On the campaign trail, Joe Biden championed the rights of workers, promising to be âthe most pro-union president youâve ever seen.â But to get the votes of centrist Democrats, Bidenâs signature Build Back Better plan was stripped of most of the provisions meant to help workers, including one that would have given the NLRB more teeth. When tens of thousands of rail workers recently threatened to strike over their demand for paid sick days, Biden blocked them from walking off the job. Advocates expected swift action on urgent workplace issues when Marty Walsh, a former union leader and mayor of Boston, became the secretary of labor. Thus far, heâs achieved little. Of all of the members of Bidenâs administration, itâs arguably Abruzzo who has brought about the most significant changes for American workers.
The NLRB, a 1,200-person agency with a nearly $300 million budget, enforces the National Labor Relations Act, the landmark 1935 law that codified the right to form a union in the United States. Its general counsel acts as a prosecutor, going after employers that violate the law. Unlike Walsh, who is a member of Bidenâs cabinet and thus has both a megaphone and the presidentâs ear, Abruzzo isnât even the leader of her agency, which itself is buried deep within the federal bureaucracy. The NLRB is led by a five-member board.
Under Republican presidents in recent decades, the NLRB has been weaponized against workers and in favor of bosses. Under Democrats, general counsels have shied away from pursuing sweeping changes, typically finding themselves in the spotlight only when they are being criticized. Abruzzoâs tenure has been different. As soon as she assumed her position, she started writing memos outlining her agenda: to speed up the unionization process; to hit back against âcaptive audienceâ meetings, in which employees are forced to listen to anti-union rhetoric; and to do everything she can to penalize employers who break the law. Sheâs gone far beyond what observers thought a general counsel could do. Her small frame and subtle demeanor belie her intense confidence in what sheâs doing. âI feel very justified in all of the positions that I have taken,â she tells me. âI feel that this agency is fully doing its job.â
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The question is whether it will keep doing its job once sheâs gone.
Abruzzo grew up in the Jackson Heights neighborhood of Queens in New York City. Her father, a control systems engineer at Con Edison, and her mother, an X-ray technician at Columbia-Presbyterian Hospital, provided Abruzzo and her two siblingsâanother would be born after she left for collegeâwith a comfortable upbringing. Both of her parents, who still live in Jackson Heights, were union members, and Abruzzo âsaw the benefit of strength in numbers,â she says. âWe had more than many in the neighborhood, and I believe that was in large part due to the negotiated wages and benefits that my parents were able to get.â
Abruzzo has been working since she was 13, she says, starting with a job at a cardiologistâs office. In college, she temped, including working at Sports Illustrated and for Kurt Vonnegutâs wife, Jill. The Democratic NLRB general counsels who came before her were educated at Yale and Northeastern (Richard Griffin) and Brown and Tulane (Lafe Solomon). Abruzzo attended two SUNY schools, Binghamton and Stony Brook, and got her JD from the University of Miami.
Michael Fischl, a law professor at the University of Connecticut, met Abruzzo when she enrolled in his summer evidence class at the University of Miami. âShe was tired,â he recalls. She was a divorced single mother who worked in the HR department of an investment bank and went to law school at night. Most students in those night classes were there to get a degree and move onâto the next job, the next opportunity. But Abruzzo was âmovedâ by the education, Fischl says.
There was no night course in labor law. But Fischl, a labor lawyer, taught a class on evidence, and he used cases from labor law as examples. âIt was clear she got into that,â he says. At a time when even lefties were skeptical of unions, âJennifer was the rare person whoâŚgot right away the idea of worker voice and collective bargaining.â Abruzzo ended up working for him for a semester, and the two eventually became friends. When Fischl heard that there was an opening at the NLRB regional office a year after she graduated, he called Abruzzo. âHe basically said, âYouâre going to apply and youâre going to take this offer if itâs offered to you,ââ Abruzzo recalls. âNo ifs, ands, or buts.â
She got the job and started in the Miami office in January 1995, working with clients âfrom all walks of life,â she says. She has been at the agency ever since, except for the three and a half years she spent as special counsel for strategic initiatives at the Communications Workers of America during the Trump years. She steadily rose through the ranks in Miami, and after her son graduated from high school, she made the move to the NLRBâs headquarters in Washington, D.C., in 2006. âI did feel like I couldâand wanted toâmake a broader impact,â she says.
The NLRB is not a household name, and its headquarters reflects its obscurity. Unlike, say, the centrally located Securities and Exchange Commission building, whose glittering rounded windows are a familiar sight to passengers leaving Union Station, the NLRBâs headquarters is a squat building far from the White House or Capitol Hill, with no outward indication that it houses a government agency. Itâs a workhorse, much like Abruzzo herself, especially now. The agencyâs funding has been frozen for the past nine years, even as union elections and unfair-labor-practice filings have skyrocketed.
Abruzzo moved to the general counselâs office when it was headed by Acting General Counsel Lafe Solomon, who was appointed by President Barack Obama in 2010; the next general counsel, Richard Griffin, asked her to serve as his deputy. Abruzzoâs long tenure at the agency is part of what has allowed her to be so aggressive as general counsel. âShe really came into the job at full speed,â says Wilma Liebman, who served on the NLRB for 14 years and was chair from 2009 to 2011.
But while Abruzzo has worked in the bureaucracy throughout her career, âshe seems to think like an organizer,â says Samir Sonti, an assistant professor at the CUNY School of Labor and Urban Studies. Itâs not common to see someone with that kind of background set out to remake the agency theyâre appointed to lead. âYou donât typically succeed in the federal bureaucracy by shaking things up,â Fischl says. âItâs people who are cautious and careful who get rewarded.â
Abruzzo is shaking things up, but sheâs doing so deliberately, combing the agencyâs history to find precedents that favored workers. Itâs a strategy that can be pulled off only by someone who knows the agency inside and out. âBecause she is able to draw on agency tradition and is so conversant in agency processes,â Fischl says, âsheâs zeroing in on ways that, at least within the agency, are going to make a difference for a long time to come.â
If Abruzzo is adamant about anything, itâs that the NLRB is meant to serve workers. âWe are a neutral, independent federal agency, but we enforce a pro-worker statute,â she says. So when she took the reins as general counsel, her first order of business was to review precedents âwith that mandate in mind, with our goal of âWe are here to protect workersâ rights in this country.â Thatâs our job.â
Abruzzo hasnât been content merely to undo the damage that Donald Trumpâs administration inflicted on the NLRB; sheâs also been willing to challenge long-accepted practices. âIâm going to push the board to reconsider precedent that I feel doesnât comport with our mission,â she says.
One of the reconsiderations that hit the labor world like an earthquake was outlined in her first memo to NLRB attorneys laying out the types of cases she wanted them to file. Until 1969, if a union could show that a majority of workers had signed cards stating that they wanted to join, the employer was obligated to recognize the union and start bargaining unless it had âgood faith doubtâ about the unionâs majority support. That was established in a 1949 ruling of the NLRB called Joy Silk Mills, Inc. But that changed with the Supreme Court case NLRB v. Gissel Packing Co., after the agencyâs associate general counsel erroneously claimed during oral arguments that the NLRB had abandoned the Joy Silk doctrine. The Supreme Court echoed that claim in its decision. From then on, if an employer refused to recognize a union even though a majority of workers had signed cards, the union has been forced to run what often becomes a lengthy and difficult election overseen by the NLRB. Eventually the board officially abandoned Joy Silk. In the years that followed, there was a huge spike in workers alleging that their employers illegally intimidated them during the unionization process.
Abruzzo wants to reverse that precedent. In that first memo, she told her staff that she was seeking cases in which an employer had refused to recognize a union despite the fact that a majority of workers had signed cards and, citing Joy Silk, âthe employer is unable to establish a good faith doubt as to majority status.â In such cases, she can argue that the employer is obligated to recognize the union based on the majority of signed cards. If the employer refuses, the case is eventually heard by the board, and Abruzzo has the opportunity to make her arguments in favor of the Joy Silk doctrine in front of it. Such a case is already sitting with the board, awaiting a decision. If the board agrees with her, it will set a binding precedent for all workers.
No recent general counsel has touched Joy Silk. âShe knew that thatâs where things went wrong,â Fischl says. âIt was something that only a longtime insider who had watched these cases from up close could know.â If Abruzzo succeeds in reversing the precedent, it would achieve a core provision of the 2009 Employee Free Choice Actâa bill that ultimately diedâand make unionizing significantly faster and easier.
Another issue sheâs taken on is captive audience meetings, in which employers force workers to listen to anti-union messages. Unions get no equivalent access to workers. Kate Bronfenbrenner, the director of labor education research at Cornell University, has found that captive audience meetings are one of the most common anti-union tactics used by employers, and that theyâre effective: From 1999 to 2003, unions had a 47 percent win rate when captive audience meetings were held during NLRB elections, compared with 73 percent when they werenât.
In a memo issued in April, Abruzzo announced that such meetings violate the National Labor Relations Act because they infringe on an employeeâs right to refuse to listen to employer speech about their collective bargaining rights. âItâs an unusual interpretation and a new interpretation,â Bronfenbrenner says. But, she adds, that doesnât mean itâs not valid.
Abruzzo has also sought injunctionsâemergency measures asking a court to intervene quickly on behalf of workers before a charge can be fully litigated before the boardâagainst employers that she has alleged are violating their workersâ right to organize during a campaign. Such measures arenât typically used by general counsels. But under Abruzzoâs guidance, the NLRB has issued five injunctions against Starbucks for alleged union busting, including one that required the company to rehire the Memphis Seven, a group of employees who were fired while organizing a union. She has also encouraged NLRB attorneys to file injunctions against employers who threaten to fire workers or shut down stores in response to union drives.
Abruzzo has gone after employers not just to secure back pay and reinstatement after a worker is illegally fired, as is commonly done, but also for âconsequential damagesââcompensation for, say, penalties incurred by a worker if they couldnât pay their bills on time. The National Labor Relations Act doesnât allow the NLRB to levy fines on employers who violate the law, so making employees whole is the only remedy. This was âa tremendous priority for me,â Abruzzo says. She wanted to remind employers that in any settlements, âweâre not going to nickel-and-dime workers. Weâre going to [get] them what theyâre owed fully.â She also wants employers, rather than unions, to shoulder the costs of running a second election if the first one is tainted by violations of labor law.
The NLRB of the 1930s was âparticularly imaginative,â says Sonti, the CUNY professor. âIt was committed to actively encouraging unionismânot just providing a sanction for it but facilitating it.â Its ambition faded slightly after the Democratic Party under President Franklin Roosevelt suffered big defeats in the 1938 midterms, but the agency remained strong until Ronald Reaganâs presidency. Reagan âpioneeredâ the practice, Sonti says, of appointing pro-management consultants to the board to actively work against union rights, the approach taken by Republican presidents ever since. And even under Presidents Bill Clinton and Barack Obama, the board was nothing like what it had been. âAbruzzo is trying to act in the spirit of those earlier days,â Sonti says. âSheâll certainly rank among the most pro-labor NLRB officials in history, right up there with the early ones.â
A significant way in which Abruzzo differs from her democratic predecessors is that she has come into her role in a different climate. A reenergized labor movement has coincided with an energetic general counsel. The massive wave of strikes that swept through hospitals, schools, warehouses, and grocery stores in the early years of the pandemic has been followed by a surge of union campaigns at well-known brands such as Starbucks, Amazon, Apple, and REI. In 2022, 71 percent of Americans had a favorable opinion of unions, the highest share since 1965. âIf we had not had Covid, if we had not had the Trump administration,â Bronfenbrenner says, âshe wouldnât be able to be who she is and do what she does.â
Itâs not as if earlier Democratic appointees didnât want to make an impact. But âthe pushback was so hard they werenât able to succeed,â Bronfenbrenner says. In 2011, Lafe Solomon issued a complaint against Boeing alleging that it had violated the NLRA by transferring a production line to a nonunion facility in South Carolina in retaliation for a strike in Washington. In the aftermath, Solomon was hauled in front of Congress and was sent to South Carolina to testify. Senator Lindsey Graham put an indefinite hold on President Obamaâs nominations to the NLRB, and the Republican-led House passed a bill to bar the agency from filing a case over plant locations. Though Democrats voted against that bill, they showed âless than full-throated supportâ for Solomon, says Fischl, for taking on what was a âclear-cut case of an unfair labor action.â Liebman, the former NLRB chair, remembers a Clinton-appointed board chair who sought to issue new rules, only to have Congress threaten to cut the agencyâs budget in half, forcing him to withdraw. When Liebman was chair, she faced threats to defund the agency entirely. âThereâs a long history of Congress retaliating against the board when it uses its powers to the utmost to protect workers,â says Kate Andrias, a law professor at Columbia University.
Abruzzo is working in a very different political environment. Republicans claim she shows âflagrant disregard of applicable case law and precedent,â and now that the GOP is in control of the House, Republican members can hold investigations and even try to get Abruzzo thrown out of office. Theyâll almost certainly try to whittle down the agencyâs budget even further. But Democrats are now more likely to support unions, and President Biden is eager to maintain his pro-labor image. And having worked closely with past general counsels who faced right-wing attacks, Abruzzo is likely to be more prepared to take the heat.
The biggest challenges she faces in enacting her agenda are structural. An NLRB general counsel enjoys real power: She has more or less unfettered discretion as to which cases to bring and how they should proceed. âPeople used to joke, âWhatâs the better job, being chairman of the board or general counsel?â And most people would say, âBeing general counsel,ââ Liebman observes. âShe sets out the agenda and whatâs going to come to the board.â That agenda matters more than in some other agencies: Because workers have no private right of action, if the NLRB general counsel decides not to pursue a case on their behalf, they canât take it to court themselves the way, say, they could with a complaint at the Equal Employment Opportunity Commission.
But what the general counsel canât do is set binding precedents that shape labor law; thatâs up to the board, which acts as a sort of court. It is likely, given that a majority of its members were nominated by Democrats, that the board will endorse her viewâbut itâs not a certainty. And because Abruzzo acts as a party to the cases the board hears, she canât communicate with its members directly to persuade them to go along with her reading. âThereâs this wall between us,â Abruzzo says. âI cannot try to informally persuade them one way or another.â Another complication is that the pipeline of cases is narrow: The vast majority are settled before they reach the board.
This is a far cry from how most other agencies work. If Labor Secretary Marty Walsh wants to change a policy or rule, he can promulgate a new regulation. The board, by contrast, usually has âto wait for the right case to come up with the right parties to raise the issues in the right way,â says Sharon Block, a professor at Harvard Law School, who served on the board under President Obama. âItâs a more reactive mode of policy-making.â
Itâs reactive, and itâs slow. The board is required to issue a decision in every case that comes before it, but there are no requirements for how quickly it must act. Board members must gain agreement from a majority to issue a decision. And while the board has the power to reverse its own precedents, it must do so in a way thatâs not arbitrary and capricious, in order for it to stand up to judicial scrutiny.
Even so, the NLRB watchers I spoke to agreed that this board is taking a long time to issue decisions, particularly on high-profile cases. It has proposed a rule that would make it easier to hold franchisers like McDonaldâs and its franchisees accountable as âjoint employersâ of the workers in their restaurants. In mid-December, the board issued a decision finding that employers who violate workersâ rights owe them compensation for all âdirect or foreseeable pecuniary harm,â including out-of-pocket medical expenses and credit card debtâjust as Abruzzo has sought. But there havenât been any other âblockbusterâ decisions yet, Sonti says. The board issued 123 decisions in 2021 and 155 last year. In the 1980s, the board often decided over 100 cases a month.
Things could get even slower. The board is currently composed of three members appointed by Democrats and one by a Republican, with one seat vacant. The vacancy has slowed down the boardâs decision-making even further. And Biden appointee Gwynne Wilcoxâs term will expire this summer. If Republicans block the appointments to replace Wilcox and fill the current vacant seat, the board wonât have the members required to form a quorum and thus wonât be able to issue decisions, a stalemate that occurred earlier under George W. Bush and Obama.
Then thereâs what will happen when the power eventually shifts in Washington. âThe board is famous for whatâs known as âpolicy oscillation,ââ Liebman says. Of all the federal agencies, the NLRB swings most wildly when a different party assumes power. Take, for example, the question of whether graduate students at private universities are employees who can unionize: Since 1972, the board has said no under Republican presidents and yes under Democratic ones. If a Republican president is elected and appoints a new board majority, that majority will almost certainly undo much of whatever Abruzzo accomplishes during her tenure, particularly on big-ticket items like Joy Silk and captive audience meetings. âWe can basically assume a new board will not agree with that,â Liebman says.
And then there are the courts. After the board decides a case, the losing party can take the decision to the Court of Appeals. The consensus among left-leaning labor-law experts is that Abruzzo is being careful and strategic and has the law on her side. âSheâs really on strong legal ground and attempting to fulfill the promise of the act,â says Andrias, the Columbia professor. Helping matters in theory is that the NLRB is supposed to be granted a good deal of deference from the courts as long as it can prove that it has made a reasonable interpretation of labor law.
But if a case makes its way to the Supreme Court, the current constellation of justices, dominated by conservatives and suspicious of federal power, may not care. âThe Supreme Court and some of the more conservative lower courts have been less willing to exercise deference to agencies more broadly,â Andrias says. For example, the Supreme Court recently ruled that agencies can only take action on âmajor questionsâ when Congress has specifically authorized them to do so. And this is not to mention the current courtâs hostility to workersâ rights. âThe odds of the courtsâ overruling her are still high,â Bronfenbrenner says. âEverything she does is going to be knocked down.â
Some critics arenât waiting for Abruzzoâs agenda to wind its way through the board and the courts before trying to strike it down. In July, a group of staffing firms filed a lawsuit seeking to block her from litigating cases based on her memo on captive audience meetings, claiming that her guidance violates their First Amendment rights.
Abruzzo, for her part, is remarkably unflappable on this topic. âI do not worry about what courts may or may not do,â she says. âI do not feel constrained at all.â
These headwinds are what make labor advocates desperate to see Congress pass legislation like the Protecting the Right to Organize (PRO) Act to bolster and modernize union rights. Not only would that bill codify what Abruzzo is trying to do on her own, such as prohibiting captive audience meetings and codifying joint employer liability, but it goes even further, such as allowing the NLRB to levy fines on companies that violate labor law. âAbsent some kind of statutory change,â Liebman says, âI donât think we can be too optimistic about some of these things, even if the board adopts them, remaining set in stone.â
Without such changes, Abruzzo canât do much to help increase the pitifully low share of American workers who belong to unionsâ10.1 percent at last measureâand she has limited power over whether and when unionized workers get contracts. âJen is doing her best with incredibly weak tools,â says Block, the Harvard professor. âIt just shouldnât be this hard.â
But Abruzzo, of course, knows all of that. Sheâs using the tools in front of her. And those tools can make a meaningful difference for as long as sheâs the person wielding them. Abruzzo may benefit from the current enthusiasm about unionizing, but her actions also feed it. âWhen the government shows that it intends to protect workersâ rightsâŚthat helps encourage more union activity,â Andrias says. âEven if itâs not a permanent change in the law, to the extent that sheâs able to protect workersâ rights [so they] are able to win unions and win contracts, that can be really transformative.â
Perhaps one of the most important outcomes of Abruzzoâs agenda in the short term is simply that it sends workers a message: that these are their rights and that sheâll have their back if they exercise them. âThis shows workers that the administration really means what it says,â Liebman notes. When workers know the government is there to support them, they may feel more emboldened to struggle through the challenges inherent in forming a union. âSeeing somebody stand up and say that the federal government is on your side when you want to stand up for yourself, that youâre not doing it alone, is just incredibly important,â Block says. It âinspires them to keep going.â
âMy goals have always been and continue to be to educate,â Abruzzo says. âNot only about [workersâ] rights, but that thereâs an agency here that exists to protect those rights.â Shortly after Abruzzo moved to NLRB headquarters, she and another employee at the time, Peter Ohr, created the agencyâs first outreach program, which still exists. âThatâs outlived the various swings and administrations,â she says, adding that sheâs âheartenedâ by the swell of organizing among workers right now: âThatâs the greatest thing for me to see, and I hope that our outreach efforts are helping.â
Abruzzo has also inspired âexcitement about government, a government body, among young people, which doesnât happen very often,â Bronfenbrenner says. Sonti is in a WhatsApp thread with labor lawyers in their 30s known as the Abruzzo Appreciation Society. Fischl has more students, particularly women, interested in labor law than ever before. Abruzzo has paved a path for future NLRB general counsels to take, if theyâre brave enough. âJennifer has expanded the range of possibility, and thereâs no putting that back in the box,â Fischl says.
âIâve been at this for a long time, and Iâve never witnessed a moment like this in my career,â Liebman says.
Federal agency appointees typically try to avoid being in the line of fire. But Abruzzoâs tenure at the NLRB proves that when appointees get ambitious and take risks, thereâs a lot they can do. âYou have got to be willing to push aside all the naysayers,â Bronfenbrenner says. âIt shows that if you have the guts and the smarts, you can make some change.â
