When Joe Biden described himself this month as “the most pro-labor President in American history,” he was being overly self-congratulatory. Union density actually fell during his presidency, he signed a bill blocking a railroad workers strike, and he quickly abandoned an effort to raise the federal minimum wage to $15 an hour. (It has remained $7.25 since 2009.) Still, he was far more supportive of unions than his recent predecessors. He became the first president to walk a picket line and backed union organizing campaigns at Tesla, Toyota, and Amazon.
Yet his strongest claim to pro-labor bona fides was one he never touted in public. A month into his term he nominated Jennifer Abruzzo, a career labor lawyer, as the National Labor Relations Board’s general counsel—the role that directs enforcement priorities for some 1,200 employees across the agency’s forty-eight field offices and its D.C. headquarters. The NLRB has a bifurcated structure: the general counsel’s office is the agency’s prosecutorial arm, with a field staff that administers union elections and investigates, prosecutes, and settles charges of unfair labor practices. The board, which is governed by five members appointed by the president to five-year terms, functions for its part as a quasi-judicial body, crafting law by ruling on new cases and reviewing past doctrine. The general counsel can have enormous influence on those decisions by bringing cases or doctrine that it wants the Board to consider.
For decades the Board had been in decline, undercut by anti-labor legislation, underfunding, and presidential appointees who elevated corporate interests over those of workers. Over the past four years Abruzzo, now sixty-one, has made a concerted effort to revitalize it. Her achievements have been considerable: the agency placed important restrictions on company interference with union organizing, made union certification automatic when employers meaningfully interfere in the election process, and expanded the financial remedies for victims of unfair labor practices—such as being fired for organizing—to cover a much wider range of harms, including out-of-pocket medical expenses, credit card debt, and relocation costs. Charges of unfair labor practices rose by 41 percent during her tenure, a sign of how aggressively she directed her staff to pursue them. More than anything, she has made the moribund agency relevant again to a new generation of labor activists by reviving its original mandate of defending the rights of workers.
But these successes were also fragile and incomplete, and now the NLRB is under threat again. Trump will almost certainly fire Abruzzo on Inauguration Day—though her term doesn’t end until July—and resume defanging the agency. Elon Musk has brought a lawsuit challenging the constitutionality of the Board’s structure, which is likely to wind up before the US Supreme Court. If the justices rule in his favor, it could effectively destroy the agency—by allowing a president to remove its members and not replace them, for instance, or by requiring a jury trial for every case the Board litigates. If the Democratic Party is serious about regaining the loyalty of working-class voters, its leaders might do well to look to Abruzzo’s legacy and prioritize protecting and strengthening the NLRB when they regain power.
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The NLRB was established as part of the National Labor Relations Act, which was drafted by Democratic New York Senator Robert F. Wagner and signed into law by FDR in 1935. Sometimes called “Labor’s Magna Carta,” the act protects the right to organize, to join a union, and to strike. It is, as Abruzzo emphasizes, unambiguously “pro-worker,” asserting that the policy of the United States is to encourage collective bargaining and ensure that workers, whether in a union or not, have the right to freely associate for their own “mutual aid or protection.” The NLRA is one of the only American laws that protects a collective right, rather than an individual one.
It facilitated the greatest expansion of labor union membership in American history. In 1935 some 13 percent of the non-farm workforce belonged to a union; less than a decade later that number had risen to 34 percent. Many corporations feared the new law: almost immediately after the NLRA was enacted, a conservative group that included many wealthy business leaders challenged its constitutionality.1 Of the cases that made it to the Supreme Court, the most important was brought by a steel company, Jones & Laughlin. In 1937 the Court ruled against it 5–4, upholding the law. With its constitutionality affirmed, for the next two years the Board acted decisively in favor of workers. It ruled, for example, that any statement an employer made about its workers unionizing was inherently coercive.
But the counterattack intensified. In 1939 a conservative, arch-segregationist Southern Democratic congressman named Howard W. Smith formed a committee to investigate the NLRB. The Smith Committee red-baited members of the agency’s staff and made a series of recommendations to dilute its power. Those measures were enacted essentially verbatim in 1947, when Congress passed the Taft-Hartley Act over President Truman’s veto. The law banned “secondary” boycotts (in which a union targets a third party to pressure the primary party in its dispute), allowed states to enact right-to-work laws (which bar unions from requiring the workers they represent to pay dues) and gave “free speech” rights to employers, allowing them more leeway to insert anti-union views.
Taft-Hartley also required a union’s executive officers to sign anti-Communist loyalty oaths, reflecting the Red Scare and helping transform the American labor movement into a more conservative mold: most notably, over the next several years the Congress of Industrial Unions (CIO) purged its leftist leaders. (The provision was later ruled unconstitutional.) Unions derided the law as the “slave labor” act; Wagner, who was too ill to attend the Senate hearings, singled out the free speech provision as potentially the most damaging. “Talk of restoring free speech to the employer is a polite way of reintroducing employer interference, economic retaliation and other insidious means of discouraging union membership and union activity,” he wrote as Congress debated the bill.
Even before the passage of Taft-Hartley, the Smith Committee had terrified the Board into pulling back from its assertively pro-labor doctrine. Under President Eisenhower the NLRB went further in a business-friendly direction, deciding, for example, that an employer can require workers, under penalty of discipline, to attend anti-union discussions—which became known as “captive audience” meetings—without requiring that the union be given equal time to respond.
The Kennedy-Johnson years saw a partial restoration of the Board’s core mission, only for the agency to swing in the other direction under Nixon. In 1983 Ronald Reagan made an even more dramatic change by appointing Donald Dotson as chairman. Dotson, who considered collective bargaining “the destruction of individual freedom,” let cases pile up, leading one member of Congress to say that the NLRB was on the verge of becoming nonfunctional.
The Board’s decline made unionization harder, often because of morale-destroying delays in elections and employer interference that went unpunished. Its failures contributed to the decades-long thinning of unions. That drop-off, in turn, correlated strongly with the stagnation of working-class wages and the rise of income inequality. By the George W. Bush presidency, the AFL-CIO said that the agency had “been perverted into a dangerous enemy of workers’ rights.” By the end of Bush’s second term it had three vacancies, leaving it shy of its required quorum and powerless, according to a Supreme Court ruling, to issue orders.
Then came Trump, who nearly eviscerated the NLRB during his first term in the White House. Most significant was his appointment of Peter Robb, a management-side attorney, as general counsel. Robb had a particularly notorious anti-union past; he was Ronald Reagan’s lead lawyer when Reagan fired 11,000 air-traffic controllers in 1981, effectively breaking their union and launching a decades-long attack on organized labor. Despite severe staffing shortages, Robb left nearly $9 million of the NLRB’s budget unspent during two years of his tenure. By the time Abruzzo was confirmed, she told me, eight of the agency’s twenty-six regional director positions were unfilled. Robb, who Biden fired twenty minutes after his inauguration, is now part of Trump’s transition team.
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Robb’s successor couldn’t have been more different. Abruzzo grew up working-class, in Jackson Heights, Queens. Her mother was an X-ray technician at a Manhattan hospital, her father an electrical engineer at Con Ed. Both belonged to unions, and early on she noticed among her friends’ parents that those who were in a union did better than those who weren’t. Still, her family didn’t have much money. During a walk through her old neighborhood this summer, she pointed to an MTA bus depot and told me that there were times she couldn’t afford the bus fare home from school. She graduated from SUNY Stony Brook, married, had a son, and moved with her husband to Florida, where she enrolled at the law school of the University of Miami. After splitting up with her husband, she continued night school as a single working mother.
Abruzzo was attracted to labor law, but the only class offered on the topic was held during the day. So she took an evidence class taught by Michael Fischl, who drew heavily on his experience as an attorney for the NLRB. “Jennifer stood out from the get-go as being uncommonly engaged,” Fischl told me. One day the head of the Miami NLRB office asked Fischl to recommend someone for a rare opening. He suggested Abruzzo, who got the job.
Abruzzo loved the variety of being a field attorney—investigating complaints, settling cases, conducting elections, acting as an information officer. She worked closely with Miami’s Haitian and Cuban communities, whose members were often among the city’s most exploited workers. She relished winning a case on behalf of workers who had been fired for complaining about conditions in a rat-infested Goya warehouse. Other cases were more fraught. One time, she told me, the head of a company she had investigated lunged at her in her office. (His attorney restrained him.)
For more than two decades Abruzzo worked in different positions at the agency, which she believes has served her well as general counsel. “I did not have to get up to speed,” she said. “I knew the case law clearly, because for twenty-three years I had litigated cases.” Her experience also gave her a belief in the ability of government to help ordinary citizens and a desire to restore the New Deal spirit that created the agency.
In August 2021, two weeks after Abruzzo’s confirmation (for which Vice-President Harris provided two tie-breaking votes in the Senate), she issued her first memo. It was a sweeping repudiation of more than a half-century of NLRB doctrine. She recommended allowing workers to recover damages from employers who refuse to bargain with a union, making it unlawful to hire permanent replacements for striking workers, and granting non-union workers what are known as Weingarten rights, which allow unionized workers to have a representative present at meetings in which they could be disciplined.
Perhaps most significantly, Abruzzo recommended that the Board restore a long-forgotten NLRB doctrine called the Joy Silk standard. Under Joy Silk, which was in practice from 1949 to 1969, an employer is required to recognize a union if a majority of workers indicate they want one, usually through signed authorization cards. The employer can ask the NLRB to conduct a secret ballot election only if it has a good-faith doubt in some aspect of the process. Moreover, if the employer is later found to have interfered in the unionization effort, the NLRB will consider the result tainted and automatically grant certification.
In 1969, during oral arguments in a Supreme Court case involving the NLRB, a Board attorney claimed that the agency had abandoned Joy Silk when it had not. Whether it was simply a mistake or intentional, the error had real consequences: as the labor lawyer Brandon Magner has related, the Court cited the statement in its ruling, thus codifying the end of the Joy Silk standard. Secret ballot elections, which could take months, were now increasingly marred by employer interference, which then required another election that could take more months, depleting the morale and resources of union supporters. One study showed that in the twelve years after the Court’s decision, illegal intimidation charges increased more than fivefold, while successful unionization efforts flatlined before plummeting in the 1980s.
The Board stopped short of reinstating the Joy Silk standard, but in 2023 it moved closer to it with a decision called Cemex, which gave employers only a two-week window to seek a secret ballot election if they declined to voluntarily recognize the union. If the employer was found to have committed unfair labor practices, the NLRB would automatically dismiss the employer’s petition, rather than requiring the union to re-run the election. Abruzzo, for her part, issued more memos calling for expanding labor rights: she has argued that noncompete agreements violate the NLRA, that captive audience meetings are inherently coercive, that college athletes should be granted protection under the NLRA, and that workers should be free from electronic surveillance on the grounds that it infringes on their right to organize.
Her revitalization of the agency has contributed to a steep rise in union organizing. Shortly before the 2024 election, Abruzzo’s office announced that the number of union elections had doubled during her tenure—the first increase of any kind since the Gerald Ford administration. Biden issued a statement highlighting the figures; Harris tweeted it. It was one of the only times during their administration that either of them had publicly celebrated the NLRB. Neither cited Abruzzo by name.
The week after Harris lost the election, the Board issued Abruzzo’s greatest victory by banning captive audience meetings. Such meetings are central to employer interference in unionization efforts—and exceedingly common: a 2019 study conducted by the Economic Policy Institute found that employers are charged with violating federal law in more than 40 percent of all union elections. This achievement, like much of Abruzzo’s work, is about to be vulnerable to reversal. Trump hasn’t announced his selection for general counsel, but a leading candidate is a management-side attorney named Alice Stock, who served as Peter Robb’s deputy during his tenure and is also a member of Trump’s transition team. Stock, or whoever the general counsel nominee is, could easily find a captive audience case and bring it before the Board as an occasion to reverse Abruzzo’s hard-won precedent.
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Abruzzo’s pro-worker stance has once again made the NLRB the target of powerful business interests, none of whom have been more hostile than Elon Musk. His campaign against the agency began in 2021, when the NLRB ordered him to remove a tweet in which he threatened to take away his employees’ stock options at Tesla if they unionized. Under the guise of “free speech,” Musk challenged the ruling in the Fifth Circuit, a clearinghouse for conservative legal activism. In late October a panel of judges ruled that Musk’s tweet was “constitutionally protected speech”—a complete repudiation of the NLRA.
A more serious threat is a subsequent lawsuit brought by Musk as the owner of SpaceX, his space exploration company. In June 2022 employees circulated an open letter criticizing the company’s workplace culture and condemning Musk’s social media posts, one of which made light of sexual misconduct allegations brought against him by a SpaceX flight attendant. (Musk has denied the accusation.) The company fired nine employees involved with distributing the letter, eight of whom filed an unfair labor practice charge with the NLRB.
In January 2023 the NLRB regional office issued a complaint asserting that the workers had been fired illegally. A hearing was scheduled with an NLRB administrative law judge to litigate the case. The following day Musk filed suit in the Southern District of Texas seeking an injunction to stop the hearing, arguing that the agency is unconstitutional because its board and administrative law judges are protected from presidential removal. (Congress created the NLRB, like the Securities and Exchange Commission, as an independent agency precisely to protect it from political interference.) Musk appealed the case to the Fifth Circuit, which issued a preliminary injunction shutting down the NLRB’s case on behalf of the company’s workers. His suit against the Board soon prompted several copycats, also filed in the Fifth Circuit, including from Amazon and Energy Transfer, which built the Dakota Access Pipeline.
A recent report predicts that before the end of the next presidential term, Elon Musk will become the world’s first trillionaire. His growing wealth and power are reminders of the strength of the forces arrayed against Biden’s appointees who, like Abruzzo, have focused on restraining corporate power, among them Federal Trade Commission Chair Lina Khan, US Trade Representative Katherine Tai, and Jonathan Kanter, the head of the Justice Department’s antitrust division. These reformers have achieved only limited success, owing to a half-century of neoliberal economic policy, decades of government austerity, and fellow members of the Biden administration who were sometimes working at cross-purposes with their agendas, such as Federal Reserve Chairman Jay Powell, Treasury Secretary Janet Yellen, and Commerce Secretary Gina Raimondo.
The NLRB’s budgetary constraints were a particularly intractable obstacle to Abruzzo’s efforts. Under her tenure, its work has increased dramatically: as Matt Bruenig noted recently in The New York Times, the unionization of over 11,000 Starbucks workers—which the company has fiercely opposed—has required the NLRB to conduct more than 550 union elections, process more than 1,000 unfair labor practice charges, and issue roughly 300 decisions. That is a tremendous outlay of resources for a chronically underfunded agency. In 2022 Congress finally increased the NLRB’s budget, which had been frozen for nine years at $274 million, but only by a modest $25 million. (Last year, House Republicans tried and failed to slash the agency’s budget by a third.) Over the past two decades the agency has lost 50 percent of its regional staff: departing employees went unreplaced owing to lack of funds. Many left because of burnout, low pay, or a sense that the agency’s leadership was undermining its intended mission.
Against the scale of nearly 170 million people in the American workforce, a gain of 11,000 union members from Starbucks is paltry. For nearly a decade, private-sector union membership has hovered at just above 6 percent before falling to that exact figure, an all-time low, two years ago. It remained there last year, too. Without labor law reform, union membership is unlikely to increase significantly, let alone recover its former strength. In 2019 Democratic legislators in the House and Senate introduced the Protecting the Right to Organize (PRO) Act, which would make unionizing significantly easier by effectively repealing much of Taft-Hartley. The law passed the House in 2020 and 2021, but it languished in the Senate under threat of filibuster. Biden and Harris both proclaimed their support for it, but neither advocated eliminating the filibuster to pass it, as Biden said he would do to protect abortion rights and voting rights. Meanwhile, Trump and Vance ardently oppose the act, which Trump threatened to veto in 2020 if it reached his desk.
Last month, Democrats had a chance to preserve their 3–2 majority on the NLRB until 2026—which would have locked in many of Abruzzo’s achievements for a time—by confirming the chairman, Lauren McFerran, to a third term on the Board. Biden nominated her in May, and she could have had a full confirmation vote in the Senate as early as August, but the Board’s fate did not appear to be a priority for the Democratic leadership. After the election, labor advocates began a concerted pressure campaign for a lame-duck confirmation. Neither Biden nor Harris publicly advocated for the vote—but on the morning of December 11, with time running out, Senate Majority Leader Chuck Schumer finally brought it to the Senate floor. According to Representative Ro Khanna, however, the vote was delayed for “no reason.” That gave J.D. Vance, who during the campaign said that he and Trump were “the most pro-worker Republican ticket in history,” enough time to fly back from Mar-a-Lago to vote against McFerran. The vote was then deadlocked, 49–49, until West Virginia Senator Joe Manchin raced over to the Senate from another engagement to sink her confirmation. Before Manchin arrived, Vice-President Harris could have broken the tie, but, according to Khanna, Democrats did not get word to her quickly enough.
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The strength of right-wing populism is inextricably linked to the Democratic Party’s failures to deliver for working-class people. Harris lost voters earning less than $50,000 a year and won those earning more than $100,000. An Associated Press survey showed that her share of union households fell by 6 percent from Biden’s in 2020. Some Democratic leaders and liberal pundits, pointing to Biden’s pro-labor gestures—such as walking a picket line and moving to save the Teamsters’ pensions—have portrayed this working-class disaffection as a sign of ingratitude. It’s easy, however, to see the loss of working-class votes as the result not of ungratefulness but of the party’s larger abandonment of labor.
As far back as the late 1940s, more than half of the Democrats in Congress voted to overturn Truman’s veto of Taft-Hartley. Over the past half-century, as wages have stagnated, Democratic administrations have often been downright hostile to workers. Jimmy Carter deregulated the airlines, trucking, and railroads, eroding the strength of those industries’ unions. Clinton signed NAFTA into law and legislation granting China permanent normal trade relations, which facilitated its entry into the World Trade Organization. Taken together, those agreements were ultimately responsible for most of the five million manufacturing jobs lost and the more than ninety thousand plant closures between 1997 and 2020. Beyond the job losses, the agreements decimated labor’s bargaining power in the factories that remained. (Biden voted for both measures as a Senator.) Despite having a filibuster-proof Senate, President Obama abandoned the Employee Free Choice Act, which would have made it much easier to unionize. As a candidate he had promised to “put on a comfortable pair of shoes myself” and “walk on that picket line with you as president of the United States” if collective bargaining rights were ever under attack. But when protesters in Wisconsin staged the largest labor uprising in decades to battle Act 10, a law that decimated collective bargaining rights for public employees, he did not come to the state to support them.
Seventy percent of Americans now approve of labor unions, the highest figure since the 1960s. James A. Gross, a professor emeritus of labor law and history at Cornell’s School of Industrial Relations, puts Abruzzo’s tenure at the center of this change. “With all its imperfections, the Wagner Act is the bedrock of labor law,” Gross told me. “It has survived all the beatings, all the defunding, and aided thousands and thousands of workers.” Abruzzo, he said, “comes closest to fulfilling the original purpose of the Wagner Act. That’s still alive because of people like Jennifer.”
If the Democratic Party intends to reforge its alignment with working-class voters and expose Trump’s faux economic populism, Abruzzo’s unapologetic, class-based approach to reviving activist government offers a clear model. “Power and wealth lead to subjugation,” she told me. “It’s the powerful few that are trampling upon the rights of the many. And why? How much is enough? Is it ever enough?” She sees the fate of America’s workers and its democracy as deeply entwined. “For decades, the rhetoric about economic freedom has been about being deregulated,” she said. “That’s the corporate messaging. I don’t buy that at all. I would argue that government involvement makes workers more free.”
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