An Unexpected Development

Some of the most ecstatic moments of labor’s recent uptick have incongruously occurred in the NLRB’s sterile halls. “If you worshiped the concept of being boring, this is the church you would build,” one Kickstarter worker told a journalist about their February 2020 NLRB hearing room where union election vote counts take place. Joyful pandemonium broke out when the final vote was counted — the union had come out on top, 46-37. And over two years of organizing and struggle later, Kickstarter’s workers got another chance to celebrate when, in June 2022, they became the first tech workers in the country to win a first contract.

The importance of the NLRB in recent labor struggles has come as a surprise to almost all wings of organized labor. For many decades now, both mainstream labor leaders and their radical critics have tended to look askance at the board. Like many other leftists, Joe Burns argues:

Class struggle unionists are deeply suspicious of the role of the government in protecting workers’ rights. Our unionism does not consider government institutions such as the National Labor Relations Board and the federal courts to be neutral institutions. Rather, anti-unionism is built into the role of the government as the protector of the billionaire ownership and control of the income-producing segments of society. This fundamental understanding leads to an entirely different approach to unionism and politics [from other labor traditions].

If radicals like Burns have tended to dismiss the potential for pro-labor governmental intervention, labor leaders have long erred in the opposite direction. But on the specific question of the NLRB, their negative stances often haven’t been too far apart. Organizing efforts outside of the board — widely seen as a decrepit, toothless institution — were all the rage among organizing-focused unions in the 1990s and 2000s. And continued assumptions about the NLRB’s powerlessness have more recently fueled labor’s exceptionally low funding for new organizing as well as a one-sided focus on lobbying for national labor law reform. Organized labor’s prevailing orientation today, as it has been for decades, is to hunker down defensively until legislative changes enable widespread organizing.

These viewpoints reflect reasonable generalizations from bitter experience. The board has failed for many decades to meaningfully uphold workers’ federally recognized right to organize and strike. But the notorious union-busters at Littler Mendelson are also right that the NLRB’s actions since 2020 have had a “chilling effect” on employers. Under Biden-appointed general counsel Jennifer Abruzzo — a longtime Board attorney who worked as special counsel for the Communications Workers of America (CWA) prior to taking the NLRB’s reins — the board has been a necessary (though not sufficient) condition spurring the recent labor uptick. In so doing, Abruzzo has brought back the crusading pro-union spirit that animated the agency from its 1935 founding until a reactionary counter-offensive purged NLRB leftists in 1938.

Abruzzo’s vehemence is hard to square with neo-syndicalist assumptions that the state under capitalism can only take pro-worker action under pressure from below. Rather, as one union leader acknowledged to journalist Harold Meyerson, “We have a general counsel that’s pushing the envelope beyond what unions themselves have been pushing for.”

Here we’ll have to limit ourselves to giving a few examples of how the board’s actions have boosted worker-to-worker drives since 2020. Especially since corporations like Elon Musk’s SpaceX are now vigorously challenging the NLRB’s constitutionality, it is important to be clear-eyed about what’s at stake in the fight to defend and strengthen it.

Starbucks Organizing Takes Off

It’s unlikely there would be a national Starbucks unionization wave had the NLRB not sided with Buffalo workers’ fall 2021 request to hold store-by-store elections. With the legal guidance of Littler Mendelson, management had been insisting on a city-wide vote, knowing that this would be far harder for the union to win. Brian Murray, one of the Buffalo salts who helped launch the campaign, recalls the situation: “We were hoping at first to go for the whole city of Buffalo. But it eventually became clear that we just didn’t have enough stores on board, so the NLRB’s decision on whether to let us hold elections at specific stores was absolutely pivotal — had the board not sided with us we probably would not have moved forward with elections, period.”

As a point of comparison, a 2004 Industrial Workers of the World (IWW) union drive at New York’s 36th and Madison Starbucks had their request for a single-store election denied by George W. Bush’s NLRB, which obliged them to pull their election petition. Of the multiple reasons why the IWW’s ongoing efforts to organize Starbucks on a “solidarity unionism” model never caught on, the absence of any legitimizing election wins was certainly one of the most important.

Buffalo’s victory on December 9, 2021, electrified service workers across the country. And by going through the NLRB, it gave others a relatively transparent step-by-step process that they could copy. “I think people under-appreciate how important it was that Starbucks’s win all of a sudden made it common sense among a wide layer of workers that they could file with the Board to unionize,” notes Jonah Furman, United Auto Workers (UAW)’s communications director. “Until then, lots of people didn’t have any sense of how you’d even begin the unionization process.”

Union Victory at Amazon

Abruzzo’s agency has also had a major impact at Amazon. Though untraditional in many other ways, the Amazon Labor Union (ALU) at JFK8 leaned on and organized through the decidedly old-school NLRB process. ALU cofounder Connor Spence, with the backing of pro bono attorney Seth Goldstein, filed a consistent barrage of unfair labor practices (ULPs) against Amazon from mid-2021 onward. “All those ULPs, and the fact that we kept on exposing what Amazon was doing to us inside on social media and in the press, put intense pressure on them,” Spence recalls. “And so the union-busters, who at first were extremely cocky and in everybody’s faces, were pretty mild by the time of the vote.”

At JFK8, as in the early Starbucks wave, many workers had what I’d call productive illusions about labor law: learning about their legal protections (without fully realizing how weakly these are enforced) gave workers confidence, which boosted their organizing and made it more costly for employers to retaliate. On the evening of their NLRB election victory, with coworkers popping champagne and dancing in the background, I asked ALU cochair Angie Maldonado about the lessons she’d pass on to others from their win. Not yet realizing the NLRB’s role in the recent uptick, I was caught off guard when she highlighted the importance of legal know-how: “Learn your rights. . . . [Management] didn’t try anything too crazy [against us] because by that point they had realized that we knew a lot about the laws protecting us.”

Angie and other ALU organizers particularly praised Abruzzo for ordering management to let ALU workers campaign out of the warehouse’s break rooms when they were not on shift. From December 2021 onward, ALU no longer had to rely on furtively talking with coworkers on their way to and from the bus stop outside. Spence notes that this “was pivotal in securing our win because not everybody takes the bus — by being in the break rooms essentially 24/7 we built a lot more relationships. And being inside legitimized us, because lots of people outside thought we were a third party, that we didn’t even work there, even when we were wearing our work badges.”

These experiences at Amazon and Starbucks are not isolated examples. For my book, I reached out to every union drive that went public in 2022 and received survey responses from over five hundred worker leaders. When asked whether the fact that “federal labor law protects — at least on paper — the right to unionize [was] a factor in helping convince your hesitant coworkers to back the unionization effort,” 86 percent of survey respondents answered affirmatively.

Though Abruzzo’s NLRB can’t push unions past the finish line, it has helped them get into — and stay in — the contest. Put simply, reports of the NLRB’s death have been greatly exaggerated.

Real Deficiencies

None of this is meant to paper over the major deficiencies of the NLRB, or the Biden-Harris administration generally. Countless interviewees complained of how long the board takes to issue its decisions. Such delays are hugely impactful, because they allow companies to demoralize workers via seemingly endless legal challenges, and because they incentivize illegal union-busting that can take years to remedy.

The good news is that these delays could be partially remedied — even before labor law reform — by sufficiently funding the NLRB. Because the board’s already-low funding levels were frozen in 2014, its staffing numbers dropped by 30 percent from 2010 to 2022, resulting in swamped staffers and excessive delays. And board funding in 2010 already constituted a 39 percent drop from what it had been in 1978.

The NLRB’s biggest limitation, by far, is that it hasn’t been able to stop large corporations from flagrantly violating labor law. Though Abruzzo is creatively pushing for new, stronger enforcement mechanisms, they generally remain weak. And its powers to force employers to bargain for a first contract are almost nonexistent.

So while it’s appropriate for unions to praise the real steps forward under Biden’s administration — including both Abruzzo’s board and, no less importantly, giving workers leverage through a tight labor market — it’s also the case that the president and other establishment Democrats have not fought hard enough to fully fund the board. Moreover, they’ve refused to use their bully pulpit and federal contracts to try to stop illegal union busting. Murray described the dynamic:

We need politicians to be part of our pressure campaign to target companies like Starbucks, to have them face consequences. Unfortunately, so far the only people that have really taken that fight to the bosses have been in the Berniecrat wing of the party. We don’t really need more photo-ops of politicians saying unions are good, we need them to call out union-busting, and to publicly demand that CEOs come to the White House to hammer out a deal with their unions.

Recent experience suggests that, as in the 1930s, getting the federal government to sufficiently intervene on behalf of unions will only take place if unions are willing to create crises for, and risk embarrassing, liberal politicians — even those that are pro-union. Unfortunately, this disposition remains exceptionally rare in the house of labor.

Under Shawn Fain’s leadership, the new UAW has demonstrated the viability of a more independent approach. By initially withholding a presidential endorsement, openly criticizing the administration’s weaknesses, and demanding Biden actively side with them in their Big Three strike, the union was able to pressure him into becoming the first sitting president to ever walk a picket line. And even after endorsing Biden, the UAW maintained its independence by quickly demanding a cease-fire in Israel-Palestine, denouncing the suppression of student protesters, and calling for a Palestinian speaker at the Democratic National Convention.

State Policies and Labor Strategy

What are the tactical and strategic implications of Biden’s surprisingly good NLRB?

First of all, rather than waiting for national legislative reform to start large-scale organizing, labor unions should do far more to seize (and enable) Abruzzo’s legal openings by scaling up bold organizing drives immediately. Leaning on the board wherever possible today can build worker power in the here and now, while also widely demonstrating the urgency of overcoming its limitations.

Especially with the likelihood that Democrats in November lose control of the Senate (which would have to reconfirm Abruzzo in 2025), we don’t know how much longer we’ll be operating under an excellent NLRB. History will not look kindly on labor leaders who failed to seize this moment.

Second, unions should be prepared to fight hard to keep Abruzzo (or another figure in Abruzzo’s camp) as the head of the NLRB, against Republican intransigence or potential backsliding from establishment Democrats. Even if we ultimately lose this appointment struggle in 2025, waging it will make it more likely to keep a decent board over the coming years. And it’s important to set the precedent that labor henceforth demands nothing short of an Abruzzo-quality NLRB. Just hoping mainstream Democrats do the right thing makes no more sense in relation to the board than it does on anything else.

Third, no matter who controls Congress next year, it’s crucial to wage a much more forceful and public battle to fully fund the NLRB. Imagine how much more efficient and productive the agency could be if it received even a modestly larger slice of what goes to the US military, whose budget in 2020 was exactly 2,634 times larger than the board’s. And polarizing the American political arena around union rights is, among many other benefits, one of the best ways to undermine Republicans’ inroads among working people and union members.

Finally, contrary to the claims of some leftists (as well as Teamsters’ president Sean O’Brien), it is crucial to defeat Trump this November. Combining bottom-up militancy with electoral politics is a difficult tightrope to walk — as is forging a broad coalition to defeat Trumpism while simultaneously building political instruments independent of the Democratic establishment. But for those pursuing transformative change, this is the only realistic path forward.

Preventing a Republican-appointed board is an essential (though obviously not sufficient) step toward maintaining the labor movement’s post-pandemic momentum and keeping open a political window in which labor has the potential to unionize at scale — to organizing millions, not just thousands.

State policy is not just important for labor’s advance. Right-wing governments and policies since Ronald Reagan — often with the backing of corporate Democrats — have devastated organized labor and obliged unions to fight countless defensive battles to prevent a further slide backward. The unfortunate fate of the teachers’ movements in West Virginia and Oklahoma can serve as a cautionary tale about the limits of rank-and-file militancy in the face of sustained governmental persecution. Though the 2018 statewide K-12 strikes showed it was possible to fight and win partial battles under conservative administrations, Republican leaders in these states ever since have waged a relentless offensive against educators’ unions. By all accounts, the situation today is worse for school workers and public schools than it was on the eve of their inspiring strikes.

A return of Republicans to the White House risks generalizing such a reactionary offensive nationwide against all unions, progressive struggles, and the NLRB. Again, as in the 1930s, the fate of organized labor today remains bound up with the broader fight to defend and expand political democracy against right-wing minoritarianism.

All that said, it is also indisputably true that the Biden-Harris administration is continuing to bankroll Israel’s unspeakable horrors against Palestinians. Since all human lives are equally precious, abstaining or voting third party in November might make sense if there was a chance doing so would more quickly end the genocide or bring about a cease-fire. But since this is obviously not the case, there’s no real political dilemma in November. Left-led unions like the UAW and the United Electrical, Radio and Machine Workers of America have shown that it’s possible to steadfastly fight for Palestinian lives — and to maintain labor’s political independence — while simultaneously calling for workers to vote for Harris-Walz. Over the mid-to-long term, one of the most crucial steps we can take to help win justice for the Palestinian people is to rebuild a powerful, militant, internationalist labor movement in the United States.

Whether it’s fighting for change at home or abroad, what working people need above all is more power. Building that power depends on bottom-up activity, outward-facing persuasion, and militancy at work and beyond. But since government policy matters so much for the fate of our grassroots organizing, we have the moral and strategic duty to be hardheaded about how we relate to establishment Democrats and the state. To paraphrase Karl Marx, many activists have criticized the world — the point, however, is to change it.