NEW YORK—The corporate class that tried, and failed, to strangle the National Labor Relations Board in its cradle almost 80 years ago is still at it, but hiding that aim via a different goal, to intimidate the board via lawsuits and pressure from enforcing workers’ rights, says board General Counsel Jennifer Abruzzo, the agency’s top cop.
But corporate legal efforts against “the administrative state,” led by the firms owned by two of the world’s richest people–Amazon mogul Jeffrey Bezos and Tesla tyrant Elon Musk—will fail, she says.
Musk sued after the NLRB cited his SpaceX firm for illegally firing eight workers who spoke up in unison over workplace issues, she adds. “Bezos jumped on the bandwagon,” as did Trader Joe’s. All want to emasculate the NLRB’s structure. Indeed, their lawyers contend the board is unconstitutional.
They’re suing to avoid answering to the board for their labor law-breaking in general “and for repeatedly violating workers’ right to organize and collectively bargain,” says Abruzzo. The corporate goal “is to divert attention away from the fact that they are law-breakers and need to be held accountable” by federal agencies, she elaborates.
In that statement, Abruzzo echoes Adam Smith, the founder, more than three centuries ago, of modern economics. Even Smith said the government is necessary to check unbridled corporate excess.
“It seems there are a lot of low-road deep-pocket employers who are…searching for injunctions from the courts, to slow us down or to prevent us from engaging in enforcement against them.
“They’d rather spend their money to litigate than on improving their workers’ lives and their workplace operations”—a particular worker complaint against Amazon, Tesla, and Starbucks. Judges will see that corporate priority, Abruzzo believes.
Abruzzo discussed the NLRB and gave its staffers high praise for shouldering on and enforcing workers’ rights, as the National Labor Relations Act of 1935 demands. Its goal, the NLRA’s preamble says, is to put workers on a level economic footing with bosses, by declaring their right to organize and bargain collectively for their common good is in the economic interest of the U.S.
“The NLRB was created as an attempt to equalize bargaining power at the workplace,” Abruzzo explained in opening the discussion of the board and its role, sponsored by the Manhattan-based non-profit Roosevelt Institute, a think-tank allied with the FDR National Memorial in Hyde Park, N.Y.
“What is super-important is that the NLRA is the only—only—federal labor law in the country that protects the rights of workers to organize and bargain collectively,” Abbruzo elaborates.
The NLRA, and the board, “are the only show in town” when bosses trample on workers’ labor rights. Other regulators, such as the Environmental Protection Agency, for example, give citizens choices, most often letting them sue in court as individuals or as a class.
Still, enforcing labor law is difficult, Abruzzo admitted in the April 9 forum.
“There is no private right of action” under the NLRA, Abruzzo noted. And labor law’s fines are—or were—too small to stop rampant lawbreakers.
Since she took over, Abruzzo found a way to increase NLRB’s clout: Enlarge the hurt on bosses’ pocketbooks when they break labor law against workers.
Under Abruzzo, a law-breaking boss must shell out for all expenses a worker incurs when the boss violates her rights and especially if he illegally fires her or forces her to quit: Back pay, credit card charges, alternative job-hunting costs, late or unpaid rent, car and mortgage bills, and so on.
Meanwhile, Congress is tied up in hyper-partisan gridlock knots and the federal courts are often stacked with Donald Trump-named right-wing ideologues clothed in judges’ black robes, says Abruzzo, a former Communications Workers top counsel before taking the NLRB job.
That means citizens must often turn to regulatory agencies—including the NLRB, the Environmental Protection Agency, the Consumer Financial Protection Bureau, and the Federal Trade Commission—to protect their rights, to strive for economic and political equity, and to preserve their freedoms, especially against corporate goliaths, Abruzzo and panelists responding to her said.
In short, she says, “the administrative state” of professional non-partisan workers toiling in such agencies is important, not just in a judicial sense but in a moral sense of doing right for citizens.
That poses a big threat to the corporate class, especially from an activist NLRB that believes in the agency’s goal. So honchos make it a top target, she explains.
Thus the lawsuit challenging the NLRB’s structure and powers. Musk, Bezos, and their corporate allies sued in the right-wing dominated Fifth U.S. Circuit Court of Appeals in New Orleans. That Trump-stacked court covers deep-red Texas, Louisiana, and Mississippi.
Thus also the corporate class’s pressure, in the courts and through congressional lackeys, mostly Republicans, to get the NLRB to back off, to go slow, or not make any decisions at all. It won’t do that.
“There is no way, despite our very limited resources” i.e. lack of money and short-staffing “and pressure imposed on our board agents that we’re going to succumb to these challenges” including “defending the agency structure” against Bezos, Musk, and other corporate criminals, says Abruzzo.
Meanwhile, the NLRB’s caseload is rising. After years of declining union density and election petitions, for example, the number rose 35% in the first six months of this fiscal year, compared to the same time the year before. That included many large organizing drives, by Starbucks Workers United, the Retail, Wholesale, and Department Store Union at bookstores and similar shops, and the Teachers.
Abruzzo and the other panelists—Boston College law professor Hiba Haziz, Cornell law professor K. Sabeel Rahman, UC Berkeley assistant law school professor Diana Reddy, and Roosevelt’s worker power deputy director Ali Bustamante—suggested solutions to strengthen the NLRB and discussed who would benefit the most if the board stays protected from corporate emasculation.
Haziz identified who would be hit the worst if the “administrative state,” including the NLRB, is squashed: “Those who get government benefits, those who are the most vulnerable among us and those protected by rights likely to be violated by folks with significant amounts of economic power.”
In lay language, that means bosses and billionaires, like Musk, Bezos, and their ilk, win, and we lose.
Reddy proposed a political solution: Elect more pro-worker lawmakers this fall, who can approve the Protect The Right To Organize Act, labor’s top legislative priority, to strengthen the NLRB’s powers, reach, and penalties.
And pass the rewrite and restoration of the Voting Rights Act and other election reform laws so the corporate class and its right-wing political puppets can’t prevent voters from casting their ballots, and having them all counted fairly and correctly.
But all four, and Abruzzo, did not did not discuss the proverbial political and judicial elephant in the room. That’s a Supreme Court case, argued on January 17. If the corporate class wins, it would emasculate the NLRB and every other agency even more than the judicial challenge Musk, Bezos, and their compatriots are mounting against the “administrative state.”
That case, involving National Marine Fisheries Service charges to fishers for monitoring their catches, would strip away virtually all rule-making powers from all agencies—the labor board included. Rules and regulations would be in the hands of the tangled-up dysfunctional Congress or ideologues in black judicial robes. Which is exactly where the corporate class wants them. The rules would die.
The fisheries case would overturn the 1984 ruling which Chevron Oil lost to the Natural Resources Defense Council over an EPA rule. That decision created “Chevron deference,” the presumption that unless an agency really goes out of its way to break the congressional law which created it—or really gives no reason for why it ruled as it did—judges should defer to its expertise and decisions.
The AFL-CIO filed a strong friend-of-the-court brief, available online at scotusblog.com, pointing out how dumping Chevron deference could really hit workers hard. All the rules governing work, from the NLRB, OSHA, the Wage and Hour Division, or anyone else, would wind up with the judges and pols. That’s a recipe for even more gridlock and ever-longer stints of justice delayed being justice denied.
Overturning Chevron deference has one sure vote among the three Trump-named justices, Neil Gorsuch. Gorsuch blasted Chevron’s deference in a dissent when he was a federal appellate judge in Denver. He also may have a personal stake in killing it. When Chevron lost to the NRDC over an EPA pollution rule during the GOP Reagan regime, the justice’s mother, Anne Gorsuch, ran EPA.
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