Meet the Activist Championing the Rights of Workers From the Inside

Meet the Activist Championing the Rights of Workers From the Inside

Meet the Activist Championing the Rights of Workers From the Inside

Of all the members of Biden’s administration, NLRB General Counsel Jennifer Abruzzo has arguably sparked the biggest changes for American workers.

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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, doesn’t 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 (she’s 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 “Women belong in all places where decisions are being made” sits atop it. As we talk, she sips from a large mug that identifies her as the “Best Grandma Ever.” A credenza next to her desk is lined with family photos. She travels to the Carolinas to babysit her son’s 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 she’s 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 “the most pro-union president you’ve ever seen.” But to get the votes of centrist Democrats, Biden’s 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, he’s achieved little. Of all of the members of Biden’s administration, it’s 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 Biden’s cabinet and thus has both a megaphone and the president’s ear, Abruzzo isn’t 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. Abruzzo’s 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 “captive audience” 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. She’s gone far beyond what observers thought a general counsel could do. Her small frame and subtle demeanor belie her intense confidence in what she’s doing. “I feel very justified in all of the positions that I have taken,” she tells me. “I feel that this agency is fully doing its job.”

The question is whether it will keep doing its job once she’s 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 siblings—another would be born after she left for college—with a comfortable upbringing. Both of her parents, who still live in Jackson Heights, were union members, and Abruzzo “saw the benefit of strength in numbers,” she says. “We 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.”

Abruzzo has been working since she was 13, she says, starting with a job at a cardiologist’s office. In college, she temped, including working at Sports Illustrated and for Kurt Vonnegut’s 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. “She was tired,” 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 on—to the next job, the next opportunity. But Abruzzo was “moved” 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. “It was clear she got into that,” he says. At a time when even lefties were skeptical of unions, “Jennifer was the rare person who…got right away the idea of worker voice and collective bargaining.” 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. “He basically said, ‘You’re going to apply and you’re going to take this offer if it’s offered to you,’” Abruzzo recalls. “No ifs, ands, or buts.”

She got the job and started in the Miami office in January 1995, working with clients “from all walks of life,” 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 NLRB’s headquarters in Washington, D.C., in 2006. “I did feel like I could—and wanted to—make a broader impact,” 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 NLRB’s headquarters is a squat building far from the White House or Capitol Hill, with no outward indication that it houses a government agency. It’s a workhorse, much like Abruzzo herself, especially now. The agency’s 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 counsel’s 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. Abruzzo’s long tenure at the agency is part of what has allowed her to be so aggressive as general counsel. “She really came into the job at full speed,” 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, “she seems to think like an organizer,” says Samir Sonti, an assistant professor at the CUNY School of Labor and Urban Studies. It’s not common to see someone with that kind of background set out to remake the agency they’re appointed to lead. “You don’t typically succeed in the federal bureaucracy by shaking things up,” Fischl says. “It’s people who are cautious and careful who get rewarded.”

Abruzzo is shaking things up, but she’s doing so deliberately, combing the agency’s history to find precedents that favored workers. It’s a strategy that can be pulled off only by someone who knows the agency inside and out. “Because she is able to draw on agency tradition and is so conversant in agency processes,” Fischl says, “she’s zeroing in on ways that, at least within the agency, are going to make a difference for a long time to come.”

If Abruzzo is adamant about anything, it’s that the NLRB is meant to serve workers. “We are a neutral, independent federal agency, but we enforce a pro-worker statute,” she says. So when she took the reins as general counsel, her first order of business was to review precedents “with that mandate in mind, with our goal of ‘We are here to protect workers’ rights in this country.’ That’s our job.”

Abruzzo hasn’t been content merely to undo the damage that Donald Trump’s administration inflicted on the NLRB; she’s also been willing to challenge long-accepted practices. “I’m going to push the board to reconsider precedent that I feel doesn’t comport with our mission,” 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 “good faith doubt” about the union’s 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 agency’s 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, “the employer is unable to establish a good faith doubt as to majority status.” 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. “She knew that that’s where things went wrong,” Fischl says. “It was something that only a longtime insider who had watched these cases from up close could know.” If Abruzzo succeeds in reversing the precedent, it would achieve a core provision of the 2009 Employee Free Choice Act—a bill that ultimately died—and make unionizing significantly faster and easier.

Another issue she’s 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 they’re 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 weren’t.

In a memo issued in April, Abruzzo announced that such meetings violate the National Labor Relations Act because they infringe on an employee’s right to refuse to listen to employer speech about their collective bargaining rights. “It’s an unusual interpretation and a new interpretation,” Bronfenbrenner says. But, she adds, that doesn’t mean it’s not valid.

Abruzzo has also sought injunctions—emergency measures asking a court to intervene quickly on behalf of workers before a charge can be fully litigated before the board—against employers that she has alleged are violating their workers’ right to organize during a campaign. Such measures aren’t typically used by general counsels. But under Abruzzo’s 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 “consequential damages”—compensation for, say, penalties incurred by a worker if they couldn’t pay their bills on time. The National Labor Relations Act doesn’t allow the NLRB to levy fines on employers who violate the law, so making employees whole is the only remedy. This was “a tremendous priority for me,” Abruzzo says. She wanted to remind employers that in any settlements, “we’re not going to nickel-and-dime workers. We’re going to [get] them what they’re owed fully.” 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 “particularly imaginative,” says Sonti, the CUNY professor. “It was committed to actively encouraging unionism—not just providing a sanction for it but facilitating it.” 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 Reagan’s presidency. Reagan “pioneered” 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. “Abruzzo is trying to act in the spirit of those earlier days,” Sonti says. “She’ll certainly rank among the most pro-labor NLRB officials in history, right up there with the early ones.”

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. “If we had not had Covid, if we had not had the Trump administration,” Bronfenbrenner says, “she wouldn’t be able to be who she is and do what she does.”

It’s not as if earlier Democratic appointees didn’t want to make an impact. But “the pushback was so hard they weren’t able to succeed,” 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 Obama’s 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 “less than full-throated support” for Solomon, says Fischl, for taking on what was a “clear-cut case of an unfair labor action.” 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 agency’s budget in half, forcing him to withdraw. When Liebman was chair, she faced threats to defund the agency entirely. “There’s a long history of Congress retaliating against the board when it uses its powers to the utmost to protect workers,” says Kate Andrias, a law professor at Columbia University.

Abruzzo is working in a very different political environment. Republicans claim she shows “flagrant disregard of applicable case law and precedent,” 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. They’ll almost certainly try to whittle down the agency’s 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. “People used to joke, ‘What’s the better job, being chairman of the board or general counsel?’ And most people would say, ‘Being general counsel,’” Liebman observes. “She sets out the agenda and what’s going to come to the board.” 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 can’t take it to court themselves the way, say, they could with a complaint at the Equal Employment Opportunity Commission.

But what the general counsel can’t do is set binding precedents that shape labor law; that’s 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 view—but it’s not a certainty. And because Abruzzo acts as a party to the cases the board hears, she can’t communicate with its members directly to persuade them to go along with her reading. “There’s this wall between us,” Abruzzo says. “I cannot try to informally persuade them one way or another.” 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 “to wait for the right case to come up with the right parties to raise the issues in the right way,” says Sharon Block, a professor at Harvard Law School, who served on the board under President Obama. “It’s a more reactive mode of policy-making.”

It’s reactive, and it’s 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 that’s 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 McDonald’s and its franchisees accountable as “joint employers” of the workers in their restaurants. In mid-December, the board issued a decision finding that employers who violate workers’ rights owe them compensation for all “direct or foreseeable pecuniary harm,” including out-of-pocket medical expenses and credit card debt—just as Abruzzo has sought. But there haven’t been any other “blockbuster” 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 board’s decision-making even further. And Biden appointee Gwynne Wilcox’s term will expire this summer. If Republicans block the appointments to replace Wilcox and fill the current vacant seat, the board won’t have the members required to form a quorum and thus won’t be able to issue decisions, a stalemate that occurred earlier under George W. Bush and Obama.

Then there’s what will happen when the power eventually shifts in Washington. “The board is famous for what’s known as ‘policy oscillation,’” 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. “We can basically assume a new board will not agree with that,” 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. “She’s really on strong legal ground and attempting to fulfill the promise of the act,” 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. “The Supreme Court and some of the more conservative lower courts have been less willing to exercise deference to agencies more broadly,” Andrias says. For example, the Supreme Court recently ruled that agencies can only take action on “major questions” when Congress has specifically authorized them to do so. And this is not to mention the current court’s hostility to workers’ rights. “The odds of the courts’ overruling her are still high,” Bronfenbrenner says. “Everything she does is going to be knocked down.”

Some critics aren’t waiting for Abruzzo’s 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. “I do not worry about what courts may or may not do,” she says. “I do not feel constrained at all.”

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. “Absent some kind of statutory change,” Liebman says, “I don’t think we can be too optimistic about some of these things, even if the board adopts them, remaining set in stone.”

Without such changes, Abruzzo can’t do much to help increase the pitifully low share of American workers who belong to unions—10.1 percent at last measure—and she has limited power over whether and when unionized workers get contracts. “Jen is doing her best with incredibly weak tools,” says Block, the Harvard professor. “It just shouldn’t be this hard.”

But Abruzzo, of course, knows all of that. She’s using the tools in front of her. And those tools can make a meaningful difference for as long as she’s the person wielding them. Abruzzo may benefit from the current enthusiasm about unionizing, but her actions also feed it. “When the government shows that it intends to protect workers’ rights…that helps encourage more union activity,” Andrias says. “Even if it’s not a permanent change in the law, to the extent that she’s able to protect workers’ rights [so they] are able to win unions and win contracts, that can be really transformative.”

Perhaps one of the most important outcomes of Abruzzo’s agenda in the short term is simply that it sends workers a message: that these are their rights and that she’ll have their back if they exercise them. “This shows workers that the administration really means what it says,” 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. “Seeing somebody stand up and say that the federal government is on your side when you want to stand up for yourself, that you’re not doing it alone, is just incredibly important,” Block says. It “inspires them to keep going.”

“My goals have always been and continue to be to educate,” Abruzzo says. “Not only about [workers’] rights, but that there’s an agency here that exists to protect those rights.” Shortly after Abruzzo moved to NLRB headquarters, she and another employee at the time, Peter Ohr, created the agency’s first outreach program, which still exists. “That’s outlived the various swings and administrations,” she says, adding that she’s “heartened” by the swell of organizing among workers right now: “That’s the greatest thing for me to see, and I hope that our outreach efforts are helping.”

Abruzzo has also inspired “excitement about government, a government body, among young people, which doesn’t happen very often,” 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 they’re brave enough. “Jennifer has expanded the range of possibility, and there’s no putting that back in the box,” Fischl says.

“I’ve been at this for a long time, and I’ve never witnessed a moment like this in my career,” Liebman says.

Federal agency appointees typically try to avoid being in the line of fire. But Abruzzo’s tenure at the NLRB proves that when appointees get ambitious and take risks, there’s a lot they can do. “You have got to be willing to push aside all the naysayers,” Bronfenbrenner says. “It shows that if you have the guts and the smarts, you can make some change.”

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