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Welcome back. Recently, I had a chance to speak with Jennifer Abruzzo, the general counsel of the National Labor Relations Board.
The mission of the agency is to enforce the National Labor Relations Act, a pro-worker statute enacted by Congress during the Great Depression intended to facilitate communication with employers and improve wages and working conditions in the private sector.
The growing momentum toward unionization has prompted her agency to put together a new digital tool kit in partnership with the U.S. Small Business Administration, the U.S. Department of Labor and the U.S. Federal Mediation and Conciliation Service to guide employers on how to respond to employees who want to form or join a union.
Ms. Abruzzo is responsible for the investigation and prosecution of unfair labor practice cases and for the general supervision of the NLRB field offices in the processing of cases. She spoke to The Workplace Report about how her agency enforces the NLRA in a postpandemic workplace, the expansion of unions and rising employee advocacy. Here are edited excerpts:
WSJ Pro: Can you quickly summarize the NLRB’s mandate for us?
Ms. Abruzzo: We encourage the practice and procedure of collective bargaining, which typically includes unionization, and also the free association of workers to act together to improve their working conditions, which is called "protected concerted activity." This second part is important because many organizations don’t understand that the statute still applies to them even if they don’t have a unionized workforce.
WSJ Pro: It feels like more workers are unionizing today. From your seat, is this the trend?
Ms. Abruzzo: The pandemic may have solidified in workers’ minds that they add significant value to their employers’ operations and that their concerns of health and safety, scheduling and essential worker compensation should be heard. At the NLRB, we are seeing a surge of election petitions being filed—up 50% from last year—and many of these workers are younger and from traditionally underserved populations. They are asking to freely and fairly choose union representation, whether established or homegrown.
WSJ Pro: How do social movements like #MeToo and #BLM relate to the NLRB’s mandate?
Ms. Abruzzo: Workers are feeling more empowered to elevate their voices. I think that racial, social and economic justice advocacy, where the subject matter has a direct nexus to employees’ interest as employees, counts as protected concerted activity.
For example, we are engaged in litigation involving adverse action taken against employees who were involved in #BLM protests. In addition to promoting a broad societal interest, these employees connected their activities to improving conditions at their workplace. The message? Don’t presume your employees are acting in a vacuum. Just because they’re wearing a T-shirt doesn’t mean they don’t have a valid concern.
WSJ Pro: What are your recommendations for how organizations can stay "on the right side of the law" when it comes to labor-related issues?
Ms. Abruzzo: I was an HR generalist myself way back when, and I also manage a very large organization and deal with two unions, so I can certainly understand why HR folks want to get it right.
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The first thing to do is post the "Know Your Rights Under the NLRA" poster and educate yourself about the statute. We see inadvertent violations far too often due to lack of knowledge, and there is a lot of overlap with statutes with which you may be more familiar, such as the Fair Labor Standards Act and the Occupational Safety and Health Act.
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The NLRB isn’t going to independently start an investigation of any one employer per our statute, but if you find yourself in a situation where you have been charged with unfair labor practices, cooperate. Around two-thirds of our cases are dismissed or withdrawn. If there is a meritorious finding, I suggest settling the case as soon as possible. Sometimes, a letter of apology can really help to reset the relationship and get operations back to normal.
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In general, avoid retaliating against workers for engaging in protected concerted activity because they are trying to address a workplace concern. Don’t disparately treat, fire, discipline or transfer workers engaged in union activities, and if you hear about an organizing drive, don’t interrogate people about it. If your company’s leadership wants to express its views on unionization to workers, this should be done at a voluntary meeting.
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Finally, respect your employees’ choice of representative—even during times of hard bargaining—and always strive to have productive labor-management relations. This will avoid workplace conflict and maintain productivity.
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