WASHINGTON—The top enforcement officer at the National Labor Relations Board, Acting General Counsel William Cowen, has cut back on remedies for workers harmed by company law-breaking.
The latest anti-labor move by the administration follows a Supreme Court ruling upholding the president’s right to remove the pro-labor Gwynn Wilcox from the board. A lower court ruling said her firing was illegal and reinstated her until the Supreme Court reversed their decision.
That board was set up under the Wagner Act, passed during the administration of President Franklin D. Roosevelt. Its purpose was to help ensure the protection of collective bargaining and other rights for workers and the Trump administration, from early on during his first term in office, has been dead set on crippling the board’s ability to carry out its mission.
Action by workers and subsequent lower court rulings, however, can mitigate the harm done, according to Jennifer Abruzzo, the pro-labor person who held the job before the arrival of the anti-labor William Cowen. Abruzzo was interviewed by People World:
“Keep good and detailed records, and save all your receipts and bills, thus being ready with written proof of how much you had to shell out to keep you and your family alive after management broke labor law,” said the former General Counsel, Abruzzo.
Abruzzo, ably backed by former and now-fired NLRB Chair Gwynne Wilcox and the then-Democratic majority on the board, had expanded the penalties firms face—and the compensation workers get—when companies break labor law by illegal discipline or firing.
Under her policy, backed by a board decision in the Thryv case, the workers get not just net back pay, but firms must also repay them for costs they incurred to keep themselves alive: Credit card bills, late fees on mortgage or card payments, medical bills, and the like.
But at the same time Trump fired Abruzzo and replaced her with Cowen, he also—illegally under labor law—fired Wilcox. Her term didn’t expire until August 2028. She sued to get her job back, won in lower courts, but lost in the U.S. Supreme Court on a party-line vote there, 6-3. The Republican-named majority said presidents can fire even top members of independent agencies, except for the Federal Reserve Board.
Wilcox’s firing brought the NLRB itself to a halt. It now has only two members, one from each party, and it’s one short of a quorum, with three vacancies. Since it can’t make decisions, that hurts workers.
The General Counsel is the NLRB’s top administrative officer and top enforcement official. In a May 16 memo to the firm’s regional directors, Cowen ended full reimbursement of expenses to harmed workers.
Right now, the NLRB is non-functional because of a lack of a quorum. This means that a firm that illegally fired workers is still required to fork over net back pay, plus repay medical insurance expenses, credit card bills, late fees on mortgage payments, and other expenses workers incurred to keep themselves alive while waiting for reinstatement. This is why the administration can be expected to move as fast as possible to create an anti-worker functioning NLRB.
Shouldering such expenses costs firms more money and becomes a higher deterrent to labor law-breaking in the first place. It also, in part, makes up for the current labor law’s light penalties. Most combine net back pay with posted notices of “we broke the law and promise not to do it again.”
Higher fines were one feature of the Protect The Right To Organize (PRO) Act, labor’s top legislative priority. A threatened Senate Republican filibuster and defections by then-Sens. Joe Manchin, D-W. Va., and Kyrsten Sinema, D-Ariz., killed the PRO Act during the Biden administration.
The higher deterrent, more expensive for companies, is still present, says Abruzzo, who was a career NLRB attorney who went from there to the Communications Workers and has now returned to the union. “But make sure you have your bills and invoices,” and bring them to the hearing on your case. “If you don’t, you won’t get full compensation,” she warns.
Abruzzo’s point was to keep the workers as whole as possible, especially in settlement agreements between workers and unions on one side and bosses and companies on the other. “When I was General Counsel, companies settled for 100 cents on the dollar,” Abruzzo said.
“Employers recognized that if they didn’t settle, the case would go into litigation,” that settlements would be expensive anyway, “and they would suffer adverse publicity, and have to pay lawyers and have their reputation sullied.” That was one reason why a massive majority of labor law-breaking cases, formally called unfair labor practices cases, settled without a hearing or an NLRB ruling.
Last year, the judges decided 39.5% of the initial 21,000 ULP complaints had merit, and 96.3% of those with merit were settled without going to appeals or the full board.
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