Jennifer Abruzzo Wants Workers to Fight Back

Just one week after taking office, President Donald Trump fired Jennifer Abruzzo, general counsel of the National Labor Relations Board. Abruzzo led the agency with a bold, worker-centered interpretation of the Act, resulting in wins for workers like expanded financial remedies for illegally fired workers, and broader protections for workers engaging in protected concerted activity, regardless of their immigration status.

On May 5, Workday Magazine interviewed Abruzzo, who has since returned to the Communications Workers of America, as a senior advisor to the president. We talked about how protected concerted activity can include Gaza protests, why it’s a shame that domestic workers and farm workers are excluded from the National Labor Relations Act, and what workers can do to fight back in the Trump era. “It’s up to the people to actually use their power and flex their muscles in order to get the changes that they deem are appropriate,” she says, “so that they can live the lives that they deserve with dignity and respect.

Workday Magazine: What do you think workers and unions should be doing at the moment to respond to the uncertainty around the Board and the Act? What’s the best way for unions and workers to not only protect themselves, but try to build the labor movement in light of the federal climate. And what should unions be doing beyond filing lawsuits?

Jennifer Abruzzo: Okay, so initially, I will say that, at this juncture anyway, despite the fact that there’s not a Board quorum, the General Counsel side of the NLRB is still functioning. And so I would suggest that workers and their advocates, or labor organizations that are representing them or seek to represent them, don’t just ditch filing with the agency. Because, as you may know, typically the regions find around 40% of the charges filed to be meritorious. And of those, 95% are settled at the regional level without any involvement of the Board side at all. For those that are fired as a result of union organizing, for example, I wouldn’t suggest that they don’t consider the agency as a forum to remedy the violation of their rights.

That being said, certainly, there are challenges to the constitutionality. There are challenges to the NLRB’s independence or independent decision-making. As I said, there is no quorum, so the Board can’t act, which means that, for a segment of unfair labor practices, charges that may reach the Board after being litigated, or election cases where workers are choosing to be represented by a union or not, if there are objections or challenges, those may get stuck at the Board as well. And a decision then can’t be made, at least not yet, until Member Wilcox is returned to the Board, or there’s otherwise a quorum. So there is going to be some delay for a certain segment of of cases, both on fair labor practice cases and representation cases.

Everybody needs to remember, workers, in particular, need to remember the impacts that they make on each other and on their families and on their communities each and every day. They have power, and they need to remember that they have power, and they need to remember that they have a voice. And I think that advocates, including unions, can make sure that workers’ voices are amplified and that billionaire corporate donors don’t have an outsized voice, who  are squelching the voices of the actual hardworking people. This is a country of the people, for the people, and by the people.

Workday Magazine: If DOGE or the Trump administration closes or hobbles the agency to the point of ineffectiveness, i.e., no meaningful redress or enforcement, what is the future of the labor movement in the U.S.?

Jennifer Abruzzo: Well, I think if that happens, we’re going to go back to a pre-1935 situation. In 1935, Congress enacted the statute in order to level the playing field between workers and their employers because, at that time, there were no channels of communication in order for workers to express to their employers their concerns – whether it be low wages or substandard conditions involving health and safety, or whether it was around benefits or training or discrimination, there was no real mechanism to communicate those areas of mutual concern. It was leading to a lot of strikes, and it was detrimentally affecting the failing economy during the Great Depression, and so it was really important that Congress recognized and enacted the National Labor Relations Act in order to give workers a voice and to allow them to freely choose a representative to negotiate with their employer on their behalf—to address wages and other working conditions in order to improve their circumstances.

As a result of negotiated wages and benefits and other working conditions, workers became better consumers and were able to prop up the failing economy. And so, if we no longer have an NLRB, we no longer have an agency that is able to protect and enforce the rights that workers have to engage in union activity and to engage in protected concerted activity, meaning collective action, even without a union, to improve their circumstances, I think you’re going to see what we saw pre-1935, which is violence, strikes, and workplace and industrial instability.

Workday Magazine: Our next question is about the future of the NLRA. So, as you know, we’re quickly approaching 100 years of the National Labor Relations Act. In an ideal scenario, where would you see any amendments to the NLRA? What would you like to see? What do you think the greatest weakness of the Act will be for the next 100 years, and what would you like to see added or removed to address it?

Jennifer Abruzzo: There are amendments that have been percolating: legislative amendments, which is the right way to go, since it is a statute enacted by Congress, so Congress should be acting to address any issues that it deems appropriate, and that workers and their advocates deem are appropriate for their legislators who are representing them and were voted in by them, to take up and address. The PRO Act would expand the jurisdiction of the agency, and I think that that’s really important so that the agency covers more private sector [1] employees, and so that it also covers employing entities that go beyond the typical employing entities that we knew of back in 1935. In particular, I’m thinking of the gig economy, for example, or other sorts of employing entities other than the traditional ones: joint employer, single employer, things like that.

I think that the jurisdiction also needs to be expanded to include more workers under the statute. There was apparently very successful lobbying that went on back in 1935, so agricultural workers are excluded. Domestic workers are excluded. Independent contractors are excluded. So I would like to see a broader swath of workers be included, and that includes those that are misclassified getting the relief they deserve.

I don’t need to go through chapter and verse, but the PRO Act does a really nice job of going through the various sorts of violations that should be just typical. Misclassifying individuals should be an independent violation because when you tell employees that they’re something other than employees and that they don’t have protections, that chills them from exercising their rights to begin with, because they feel that if they do so and are retaliated against, there’s no agency that will protect them.

One big issue is first contract bargaining, which is a big deal because, as we’ve seen over the course of time, even after an organizing drive is successful, and workers, despite being coerced, perhaps do choose a labor organization to represent them in collective bargaining, then the employer refuses to bargain with that particular chosen representative. And years could go by before the employer is required to bargain in good faith with the chosen representative, which is not what the purpose and policy of the NLRA is. It is the policy of the United States to encourage collective bargaining, and so employers are basically getting the benefit of lack of enforcement, and that certainly undermines employee voice and choice, and so that is something that I think we need to fix. And the PRO Act talks about ways to go about doing that to ensure that there’s collective bargaining in real time, and that the parties ultimately can reach a collective bargaining agreement that’s going to inure to the benefit of workers and their employer and their employer’s operations.

Certainly there’s issues around permanent replacements of strikers, which, in this day and age, with the ubiquitousness of temp agencies and other sorts of staffing agencies that can provide temporary support. I don’t understand at this juncture the requirement that employers are, under the law, entitled to permanently replace economic strikers.

I will also say there’s other federal legislation that Congress members  should be taking up right now. The PRO Act’s been around for quite a while and it hasn’t yet garnered sufficient support to be enacted, but certainly the Biden Board precedent around mandatory captive audience meetings, around bargaining orders, and any other number of precedents, could be codified, in federal legislation. So that’s, to me, an easier road to hoe at this particular moment in time.

Workday Magazine: Just speaking of the PRO Act, one thing that you didn’t mention is the remedies or damages: that parties would be entitled to increased remedies under the PRO Act [Editor’s Note: Abruzzo’s NLRB broadened the category of remedial relief for workers illegally fired for engaging in protected concerted activity; see NLRB v. Thryv, Inc.]. I wonder if you think that should be a legislative priority, if there are amendments proposed to the NRLA, if you think that would have any impact on the number of charges that the agency might see moving forward.

Jennifer Abruzzo: I kind of alluded to it. I had asked the Board to reconsider the Ex-Cell-O case line. And they didn’t get to it. And I talked about what that meant, which has to do with failing to bargain in good faith at the time, and the fact that employees lose the opportunity and the benefit of those increased negotiated wages and benefits. One of the reasons why I felt that the Board should reconsider that precedent is: I just think it’s fair and equitable because, right now, the precedent disincentivizes low-road employers to actually engage in good faith bargaining because they get the benefit of delay.

But if  there were some sort of stick, for lack of a better word, where employers felt that they were going to be hit in their pockets, right? Whether it was through the Ex-Cell-O example that I just gave, requiring employers who fail to bargain in good faith in a timely manner, to have to pay negotiated wages and benefits based on agreed terms in a comparable industry and geographic area with comparable classifications by a high road employer, if they would have to pay those, it might deter them from failing to bargain in good faith to begin with. So that’s where my calculus was. I have seen over the course of almost three decades with the NLRB, when you tie the remedies of violative conduct to monetary remedies, you often have increased deterring effects.

Workday Magazine: According to a Bloomberg article published in May 2024, your expansive view of what constitutes protected concerted activity can be used to defend Gaza protesters. According to the article, when you were asked about Gaza-related employee protests, you said, “If it’s got a nexus to your working conditions, it’s PCA. We need to be protecting as many workers as possible. The statute is very broad.” The climate of repression against workers who criticize U.S. foreign policy has arguably only worsened since May 2024. Can you elaborate on how workers and unions could use the Act to defend workers who engage in this criticism?

Jennifer Abruzzo: I touched on this earlier. The Board did issue a decision in Home Depot, and that had to do with a similar situation or scenario. The Home Depot case had to do with Black Lives Matter, right? Which is a huge societal issue, a broad societal issue, that certainly needs to be tackled. And in various ways, workers and others are trying to tackle that broadly. The Board correctly found, as I had put forth to them, that while it’s a broad societal concern, and there’s a lot of advocacy going on around it, the protests that these workers engaged in, including wearing BLM logos on their aprons,were not only wanting to certainly amplify the broader societal issue, but it was also affecting conditions at their workplace, particularly, the way that they were being treated by a supervisor who was treating a particular group of not only employees, but also customers of particular national origin and race, in a really detrimental way. And that was affecting the workers of that particular national origin and race in that workplace.

The supervisor wouldn’t let the particular workers of a particular race do certain things or, or deal with certain customers, etc. So similarly, it’s a broader issue with regard to Gaza, and same thing could be said for the Day Without Immigrants. There are many, many, many broad societal issues and interests that need to be dealt with, and workers don’t put their citizen hat away when they enter or leave the workplace. They do a lot of other things at all times, as they should as citizens.

Whether it’s protesting about Gaza in the workplace because there’s some issue within the workplace, for example, there could be a supervisor, just like there was in Home Depot, that is treating certain people disparately because of their support of or their ethnicity, or whatever it may be, and they’re addressing that issue, as well as the broader societal issue, by engaging in collective action. It’s all protected concerted activity, as long as you can somehow connect it, the broader societal issue, to some issue that’s happening within your workplace. You’re certainly going to be covered under the National Labor Relations Act as engaging in collective action for mutual aid or protection.

Workday Magazine: You repeatedly took on Amazon, Tesla, Starbucks and other large multinational businesses in an effort to enforce the Act and support the rights of their workers with generally large successes in the individual cases. However, as we know, these powerful individuals and corporations have escalated their fight by attempting to use the courts to obstruct or even eliminate the agency’s power. It’s unclear at this point if they will succeed. So what, if anything, did you learn from this? And how should future General Counsels or agencies that protect workers tackle this problem and the growing influence that these few individuals and corporations have?

Jennifer Abruzzo: Yes, I did tackle those. Those were the ones that were in the paper, right? Because they’re the national companies. If they’re violating the law in one state or locality, they’re doing it in others, oftentimes, not always, but oftentimes. If they have unlawful policies that are broadly disseminated throughout the nation, then certainly those would be unlawful. Those were the ones in the press.

There were many, many, many other employers that violated the Act, sometimes inadvertently, not even understanding that we protected the rights of workers to engage in collective action and they couldn’t be retaliated against for doing so. There are smaller businesses out there, despite the outreach that we try to give and the education that we try to give, that just think that we only have jurisdiction over unionized workplaces. And so, there are plenty of success stories where employers violated the law, sometimes inadvertently, sometimes not, but quickly resolved the issue, reset the table, got back to the good business of listening to their employees’ concerns, addressing them, dealing with us, remedying whatever violations, and then going back to the normal employee operations. And so those are the ones you don’t necessarily see in the paper, but, nonetheless, that was a lot of our work.

What I find really distressing about national corporations is that they prefer to spend vast sums of money and use profits that their workers helped them get to pay attorneys to fight against the agency that is trying to protect their workers or remedy violations of their workers’ rights, which may include paying their workers for whatever losses the workers had because of the violation of their rights, which is minuscule compared to the amounts of money that they’re paying to these attorneys to fight the agency, left, right, and center. You mentioned a few of them that have jumped on the bandwagon and have now said that the Act is unconstitutional, or the structure is unconstitutional. Because of the removal protections of the Board members and of the ALJs, and there’s no trial by jury. Back in 1937, two years after the statute was enacted, there were challenges to the constitutionality of the statute and the agency, and it was struck down.

Almost 100 years later,  we’re dealing with these challenges to the constitutionality again, which I can only hope will go the same way that the ones did back in 1937. They certainly should because, frankly, it is violators of the law, law breakers, who are trying not to be held accountable, and they’re doing so by throwing money at whomever and whatever in order to try to prevent being held accountable for breaking the law.

Workday Magazine: While union enthusiasm soared, union density has continued to decrease, even under your tenure. Why is this and what is the path forward there?

Jennifer Abruzzo: I don’t have the answer as to why this is. I will say support for unions has skyrocketed, and particularly among younger generations. I think they recognize the strength in numbers and the power that they have, through collective action and through collective bargaining, to improve their lot in life. The lack of union membership itself, it is an opportunity for organizing, and it is an opportunity for mobilizing, and it is an opportunity for labor organizations and other advocacy groups to work with and listen to members and workers and understand their pain points and help them improve their circumstances, and help them improve how their families live.

There’s a groundswell now, and collective power is even more powerful than individual power, especially in this time where they may feel that their representatives in Congress are not representing their interests. I think you will likely see more organizing at the grassroots level, and that will bubble up to changing the composition of the legislature, and, ultimately, who’s in the White House. So it’s a moment, and I hope that workers seize the day and, and exercise their power, which includes their power to withhold labor and itt includes their power to withhold purchasing in order to get what they deem is the appropriate way to be governed, and what they deem to be the appropriate benefits that they’ve earned and are entitled to.

Workday Magazine: While in office, you never got a significant budget increase. You’ve already sort of touched on that, and of course, the PRO Act was not passed yet again. How did this constrain what you were able to do, if at all, and how did you adapt to it? And then how do you think it impacted your staff?

Jennifer Abruzzo: I felt that we could have used at least $100 million more. We ultimately received a small bump up of $25 million. So we went from almost $273 million to $300 million, which, after being flat funded for years, when you take into account inflation, that means every year you’re operating at a deficit, right? And so it is a real problem. I thought we should have had $400 million in order to, frankly, do better.

So the big detriment to not having sufficient appropriations is because around 80% of our appropriations is used for employees, worker compensation. The failure to have sufficient appropriations did not allow me to hire in the numbers that I really needed in order to effectively and efficiently effectuate our congressional mandate. And so the biggest thing was I could not hire up. Especially in the field, where the vast majority of the work is performed, and that’s where the public engagement comes in, where all the investigations are done, and where elections are performed, and also litigation before administrative law judges. So I really wasn’t able to hire up in that way, and therefore I had headquarters folks helping out in the field. I had streamlined some processes, but I wish I would have done it earlier, in order to move the cases along more quickly.

And also just outreach. We did the best we could through settlements, through me and others going out and talking about the Act, using social media, the press, etc., to highlight successes that we had. But we were limited because of the lack of resources that we had. That includes not having a user-friendly website, which would have helped tremendously, but we just didn’t have the resources to update, not only our external website but also internally our case management system, which needs to significantly be updated.

Workday Magazine: Given the back-and-forth nature of the Board majority, should future Democratic General Counsels focus more on public outreach and communication to workers about the Act and their rights through education and agency visibility, instead of the traditional focus on making changes to the law? What do you think about the argument that educating workers about their rights is a much more effective method for enforcement than through worker changes in some areas of the law that have proven temporary or oscillating—for example, the timeline for certification elections, which we’ve seen change a lot. Specifically in light of the use of social media, which some credit for this accessible organizing Starbucks and Amazon, etc., and the general increase in charges filed by individuals over the last few years.

Jennifer Abruzzo: The education piece is key. I don’t think, though, that General Counsels should necessarily prioritize education, as opposed to having co-priorities.

It is a pro-worker statute. It provides workers the rights to engage in union and collective action to improve their wages, benefits, and other working conditions. And so I do think it’s incumbent upon General Counsels as chief prosecutors to look at precedent that is not comporting with that congressional mandate, that is elevating corporate interests above workers rights, and to get the Board to reconsider such precedent. I’ve said this publicly elsewhere: If folks in the General Counsel or Board members, politically appointed Senate-confirmed individuals, if they fully understood their role and what the congressional mandate is, it is to enforce a pro-worker statute. A pro-worker statute means you’re elevating workers’ rights above any other interests: corporate, employer, union, whatever—it is a pro-worker statute. And so I think if more politically appointed Senate confirmed individuals in my position or in the Board members’ positions remembered that, there would be much less policy oscillation because they would be truly comporting with the congressional mandate to elevate workers rights above all other interests.

I will just say one other thing before we leave, and that is: I do feel that this is a moment and an opportunity for workers to speak up and out about their pain points and their issues at this moment in time, and to seek accountability and to go and seek support from the court of public opinion, and to use their power to withhold labor, if that’s what it takes for them to be heard and for changes to be made that’s going to inure the benefit of them and their families and the communities. And that may be protest activity, that may be boycotts and sit-ins and rallies and strikes and non-cooperation of all sorts. Because, as we’ve seen during the Civil Rights Movement, and many other movements in our history, including when we first determined that we did not want monarchy rule 250 years ago, when ordinary citizens in Boston protested a tax on tea, which helped start the American Revolution, it’s up to us. It’s up to the people to actually use their power and flex their muscles in order to get the changes that they deem are appropriate, so that they can live the lives that they deserve with dignity and respect.

This interview was conducted by Amy Livingston, labor educator with the Labor Education Service, and Sarah Lazare, editor of Workday Magazine. It has been edited for length and clarity.