Is the Labor Movement Screwed No Matter Who Wins the Election?

Donald Trump wore cufflinks and a tie—but no hairnet, or company visor, or rubber-soled shoes—while scooping fries into red cardboard containers last week, at a McDonald’s outside Philadelphia. He was guided through the motions of the fry station by a reedy, goateed young man, an actual employee, who had been caught up in the candidate’s maudlin cosplay of worker solidarity. The scene was designed to troll Kamala Harris, whose summertime stint at a McDonald’s during college is fake news, according to Trump. “I’ve now worked for fifteen minutes more than Kamala at McDonald’s,” he said. Within hours, he was selling commemorative T-shirts with a picture of him smiling at the drive-through window above the phrase “MAGADonald’s,” a cartoony wave of platinum-colored hair over the “D.”

Trump has long been a fan of fast food. In 2src19, he served a buffet of boxed McNuggets and Filet-o-Fish, stacked on silver platters, to the Clemson University football team, when its members visited the White House after winning the N.C.A.A. championship. But his affection for the food does not extend to the people who prepare it. That year, one of his political appointees, Peter Robb, the general counsel of the National Labor Relations Board, brokered a deal with McDonald’s that let it off the hook for alleged labor violations taking place at its franchises.

Robb’s approach to the N.L.R.B., the federal agency that enforces workers’ right to act collectively and that regulates bargaining between unions and employees in the private sector, wasn’t so different from that of previous Republican general counsels. (He started his legal career by helping President Ronald Reagan fire thousands of striking air-traffic controllers in the PATCO affair.) And yet, in the second half of Trump’s Presidency, a pro-worker moment was brewing: the “Red for Ed” teachers’ strikes of 2src18, record support for trade unions in polls, and a broader reëvaluation of work brought on by the mortal panic of the pandemic. (Remember “essential workers”?) In 2src2src, Joe Biden campaigned on a labor-friendly platform and, during his first day as President, fired Robb. On the advice of the A.F.L.-C.I.O. union federation, he replaced him with Jennifer Abruzzo, a career N.L.R.B. attorney and former acting general counsel.

Biden promised to be the most pro-labor President in history—my colleague Eyal Press and I have argued that he is—and his backing of jobs bills and unions made possible, and were made possible by, worker agitation. “This is really the first time I’m seeing that we have a President who’s actually taking an interest in us, as workers,” María Sánchez, a “plater” for an airline-food supplier in Florida and a member of the Unite Here union, told me. During the pandemic, nurses demanded more pay, office assistants and accountants began to work remotely, warehouse pickers wondered why they were risking their lives to box up cosmetics and gadgets for same-day delivery. The rich grew extremely rich: among the wealthiest ten per cent of Americans, the average household is now worth some seven million dollars, compared with fifty-one thousand dollars in the bottom fifty per cent. Younger workers, aggrieved by shortened economic horizons, formed new, experimental unions. (Remember Hot Labor Summer?) Campaigns at Starbucks and Amazon got a lot of attention and spread to grocery stores, restaurants, retail chains, nonprofits, college-sports teams, and Big Tech. They also inspired renewed activism in the United Auto Workers and the Teamsters. During Abruzzo’s tenure, the number of workplaces that sought to form unions through the N.L.R.B. doubled. Strikes proliferated.

As Vice-President, Harris cast tie-breaking votes in the Senate to confirm Abruzzo and save more than a million union pensions, and led a White House task force on worker organizing. In her campaign for President, she has vowed to strengthen labor law and raise the federal minimum wage from seven twenty-five to fifteen dollars per hour. But, even if she wins, she’s unlikely to get much of what she wants—from Congress, the courts, or, as it happens, her own administrative agencies.

Both the right and the left agree that the N.L.R.B. under Biden has been unusually active. Abruzzo, who has the quick wit and gait of a native New Yorker, is an old-school public servant, with seemingly religious devotion to the agency. She joined the N.L.R.B. in 1995; the only time she has been away was during the Trump Administration, when she realized that Robb, in her view, would “put employer and corporate interests above those of workers,” she told me in an interview at her office, in a glassy high-rise in Washington. “You also saw a dismantling of the agency. There was a lack of backfilling, there was this real lack of respect for the value that career staff adds to the operations.” (Robb declined to comment.) The N.L.R.B. has a three-hundred-million-dollar budget and approximately twelve hundred employees; its field staff has shrunk by more than sixty per cent since 2src11. When Biden brought Abruzzo back, he also named Lauren McFerran as the chair of the five-member board—the “B” in N.L.R.B.—that judges conflicts between employers and unions. McFerran led a Democratic majority on the board to undo Trump-era changes.

In August, 2src21, Abruzzo issued a legal memo that had the feeling of a long-pocketed wish list. It questioned the “wide array of doctrinal shifts” that had occurred under Trump, and identified dozens of issues in need of attention, for both union and non-union workers. It suggested, for example, that broad confidentiality agreements were unlawful; and that employers should pay damages, not just receive a reprimand, for refusing to recognize or bargain with a union.

Abruzzo’s to-do list overwhelmed her staff, especially in field offices. But unions felt that the agency was finally functioning as it should. Corporate attorneys warned of a “union-leaning N.L.R.B.” and called Abruzzo’s memo a “back door to the PRO Act,” the omnibus labor bill that Biden and Harris have supported but that has no chance of passing Congress. Abruzzo, undeterred, went on to write nearly thirty more memos, covering such topics as anti-union “captive audience” meetings, employer threats and coercion, the rights of immigrant workers, and algorithmic surveillance.

The decisions of the board went in a similar direction. Under McFerran, the board banned nondisclosure agreements that prevent workers from speaking with one another. It also attempted to overturn the Trump board’s employer-friendly take in the McDonald’s case, but lost in court. “We have a chair of the labor board and a general counsel who are experimenting with interpretations of the statute that are entirely defensible but far more dramatic than we’ve seen in a long time,” Willy Forbath, a professor of legal history at the University of Texas Austin, told me. In the past forty years, private-sector union membership has fallen from around seventeen per cent to six per cent. But the rate has stayed roughly steady since 2src21. Abruzzo and McFerran, it seems, have managed to stanch the bleed.

Meanwhile, the N.L.R.B. itself is in trouble. This past summer, the Supreme Court’s conservative majority issued three decisions that will systematically weaken the federal agencies that regulate health care, air quality, pharmaceuticals, banks, fisheries, housing, transportation, workers’ rights, and more. The N.L.R.B. was already being attacked as unconstitutional. In 2src22, a group of engineers at a SpaceX factory in California had signed a letter condemning their boss, Elon Musk, for his crude “behavior in the public sphere.” He had recently used Twitter—which he was in the process of buying—to mock, and deny, a former SpaceX flight attendant’s allegations of sexual harassment against him. SpaceX responded to the letter by terminating multiple employees, who then filed charges with the N.L.R.B. Earlier this year, the board issued a complaint alleging that the employees had been unlawfully fired, and set a hearing with an administrative-law judge. SpaceX filed a lawsuit in the conservative Fifth Circuit, in Texas, on the ground that the N.L.R.B.’s quasi-judicial structure violates the Constitution. (This is a little like contesting a parking ticket by arguing that traffic court shouldn’t exist.)

SpaceX put forth two major lines of reasoning. First, that N.L.R.B. members and judges are too insulated from removal by the President. Second, that N.L.R.B. proceedings violate the separation of powers and employers’ right to a jury trial. (Incidentally, one of SpaceX’s lawyers is Harry Johnson, a former Obama appointee to the board.) The jury-trial prong of SpaceX’s attack was potentially resolved in June, when the Supreme Court, in Securities and Exchange Commission vs. Jarkesy, ruled that a company does have a right to trial by jury, not by administrative-law judge, when civil penalties are in play. Both the Fifth Circuit and a district court have recently granted SpaceX preliminary injunctions against the N.L.R.B., blocking the agency from acting any further on the claims of the fired engineers—an extraordinary remedy. Those workers will have no recourse to damages or reinstatement until the constitutional questions are settled.

Musk’s strategy has since been adopted by employers such as Starbucks, Amazon, Trader Joe’s, and the nonprofit Audubon Society in a growing number of cases, according to Diana Reddy, a law professor at the University of California, Berkeley. Reddy and other experts I spoke with don’t believe that the N.L.R.B. or its underlying statute is necessarily doomed, or at least not completely. Judges and board members could be made “terminable at will” to address the removability concern, Reddy explained, and the agency could perhaps empanel administrative juries. “I think there will still be an N.L.R.B.,” Adrienne Paterson, an employer-side lawyer at the law firm Perkins Coie, told me, “but if there’s more ability to remove a judge or a board member, the impact will probably be deeper swings back and forth between Administrations.” All this whorling litigation, spurred on by the Supreme Court, could result in a more politicized, less capable regulatory apparatus. And, for an agency as leanly staffed and funded as the N.L.R.B., the accumulation of constitutional challenges is an existential burden.

Randy Korgan, the head of Teamsters Local 1932, in Southern California, and the director of the international Teamsters’ Amazon division, doesn’t believe that SpaceX actually wants to scrap a system that mostly works in its favor. “Employers are well aware of the fact that they use the National Labor Relations Act to slow things down and disenfranchise workers,” he said. “They want to cherry-pick the law.” Korgan’s local recently endorsed Harris for President, based on her “support of many of the policies the Biden Administration put forward.” (Teamsters headquarters refrained from endorsing either Harris or Trump.) But politics and the law, he said, are mere guardrails—“supportive mechanisms” for strikes and other tactics that force a real confrontation. “On a thirty-year time line, labor law is stagnant,” he said. “I tell workers, Don’t just depend on the system.”

That system, under Abruzzo, has reached its most pro-worker point in recent history, but remains difficult to use. When I covered the union-organizing drive at Starbucks, in 2src22 and 2src23, I spent time with Liz Duran, who was then a barista in Seattle. She and her co-workers at a high-end Starbucks Reserve location had won a union election to join Starbucks Workers United, then waited for the N.L.R.B. and the courts to force the company to negotiate. Five hundred Starbucks locations have unionized so far, but not a single store has won a collective-bargaining agreement. In February, Starbucks finally agreed to start negotiating a nationwide “framework” with the union, still for store-by-store contracts. Duran was fired about a year ago; she filed a claim of retaliation with the N.L.R.B., which is still pending before an administrative-law judge. “We didn’t hit this great new labor awakening that people hoped for,” she told me. “In terms of worker consciousness, we did, but not in terms of workers’ ability to act.” ♦