Biden’s general counsel of the National Labor Relations Board, Jennifer Abruzzo, is wielding her power in new ways
Starbucks was forced to rehire baristas after firing them during a union drive at a store in Memphis. Las Vegas laundry service Apex Linen was forced to rehire workers it laid off involved in union organizing. And Amazon may soon be forced to rehire a warehouse worker it fired in Staten Island who co-led the first successful union campaign at the company in U.S. history.
The lawyer who helped these workers get their jobs back this past year is Jennifer Abruzzo, 58, general counsel for the National Labor Relations Board, the agency tasked with protecting workers’ rights to organize in the United States.
Abruzzo has worked at the NLRB for nearly a quarter-century. But now, as the agency’s leader and chief enforcer of federal labor laws, she wants to make it far easier for workers to unionize than it has been in decades. Her tenure comes at a pivotal moment for unions. Union membership has fallen over the past four decades, but pandemic-era pressures that prompted millions of workers to retire or leave the workforce have also afforded workers new leverage to demand more from their employers. Union elections increased by 53 percent in fiscal year 2022 over 2021.
In a little over a year on the job, the President Biden appointee has become a household name throughout organized labor for reshaping the agency in new ways. In memos, she’s directed roughly 500 staff attorneys to invoke a rarely used legal tool to help union supporters return to work after retaliatory firings. She’s directed them to impose harsher penalties on employers who violate labor law and dusted off a decades-old legal doctrine that could halt employers’ anti-union campaigns.
“I’ve been with the agency for a very long time for a reason,” Abruzzo told The Washington Post. “I wanted to try and make a difference in workers’ lives. As I’ve gotten positions with more responsibilities, I was able to effectuate what I believe is our congressional mandate, which is to protect workers’ rights. We’re not pro union. We’re not pro employer. We are pro worker. That’s the lens from which I view my job.”
Abruzzo is also Biden’s best chance at achieving his goal to be the most pro-labor president in US history. At a time when Congress is so narrowly divided that Biden has yet to deliver on some major labor priorities, including a package of measures that would reinforce stronger union rights and enshrine them into law, Abruzzo’s NLRB could make it more difficult for companies like Starbucks and Amazon to fight union campaigns.
“You have a president who is unabashedly and unapologetically supportive of workers’ rights, and I think Jennifer has been given permission to pursue the issues that people around the labor movement have been advocating for over a long time,” said Seth Harris, former top labor adviser to Biden. “Jennifer understood the power of these issues and decided she’s going to try to solve the problems that we’ve all been wringing our hands over for years.”
In the meantime, Abruzzo has also earned the ire of conservatives, including the editorial page of The Wall Street Journal, which declared that she intends to “turn the labor board into a spear for unions against employers.”
And attorneys who represent employers have described Abruzzo’s proposals as further left than her predecessors under Presidents Barack Obama and Bill Clinton. For example, Abruzzo argued in a memo in April that employer-led “captive audience” meetings that pressure workers against unionizing violate labor law. Her critics disagree and say she is infringing on employers’ free speech rights.
“At least with some of my colleagues, there’s surprise and shock about how much the pendulum is swinging back. With some of the agenda items, we’re like, ‘Holy smokes, this is pretty radical,’ ” said James Plunkett, an attorney at Ogletree Deakins, a law firm that has represented Amazon and other large employers.
Abruzzo maintains her top priority is protecting workers. And on the issue of captive audiences in particular, she said she wants to ensure “those meetings are voluntary … because workers have a right to refrain from listening to [that] rhetoric.”
Abruzzo grew up in Jackson Heights in Queens. Her father was a union engineer at a utility company and her mother was an X-ray technician and member of Service Employees International Union Local 1199, one of the city’s most powerful unions. “We didn’t have a lot,” Abruzzo recalls. She got her first job helping at a cardiologist’s office at age 13.
She credits her parents for teaching her to stand up for what she believed in. In the 1980s, as a highschooler, Abruzzo knocked on the Manhattan front door of former president Richard Nixon, she said, and confronted him in his foyer about statements he had made on national television about the moral failings of her generation. He apologized to her.
Abruzzo married young and had her first and only child at age 23, following her spouse to Florida. They divorced after a few years, and Abruzzo put herself through law school night classes as a single mom. Labor law professor Michael Fischl took notice of Abruzzo as “a standout” in his class and urged her to apply for a job at the Miami offices of the National Labor Relations Board.
Abruzzo has mostly worked at the agency ever since. She spent 11 years in the Miami field office, advising workers about their labor rights and assisting them in filing for union elections. But she’s also served as a political appointee under the Obama administration, as deputy general counsel.
“I interacted with workers from all walks of life. [Miami] was a very large melting pot,” Abruzzo said. “But you’d hear the same sort of workplace concerns, whether it was about inadequate wages or inequities in the workplace or retaliation. That experience actually cemented for me the need to be available for workers whenever and wherever they needed us.”
Former leaders at the NLRB credit her years of experience for uniquely positioning her to transform the agency into a champion for workers. Abruzzo is distinguished from many of her predecessors because she spent so much time at the agency, especially its field offices.
Past colleagues described her as a highly efficient and energetic leader. She expects staff attorneys to be as well prepared as she is for meetings. She also is known for taking a special interest in young lawyers.
Nearly every colleague interviewed credited her for being a good friend who plans birthday parties and retirements dinners and checks in over email and phone calls, helping all attorneys, regardless of politics, adjust to life in Washington.
During the Obama administration, Abruzzo invited new NLRB board appointees over to her house in Virginia. Often her husband, an Italian cookbook author, led pasta-making lessons. Guests included Harry Johnson, a well-known Republican attorney with Morgan Lewis, who went on to help Amazon oppose a contentious union campaign in Bessemer, Ala., in 2021. She also hosted Philip Miscimarra, the Trump-appointed NLRB board chair, also with Morgan Lewis, who has represented the U.S. Chamber of Commerce.
“For Jen, it’s hard to know where work begins and ends,” said Celine McNicholas, an Obama-era NLRB attorney and a close friend of Abruzzo’s. “Work is her life, but I think she makes everyone around her feel like part of her family.”
The NLRB made headlines when Biden first took office because he had taken the extraordinary step — on his first day in office — of firing Abruzzo’s predecessor, Peter Robb, a Trump appointee, who was despised by labor unions and refused to resign when asked.
Later that summer, Abruzzo was sworn in to run the NLRB, 16 months into the pandemic. The vaccine was being distributed but covid was still raging and the Delta variant was about to take hold. Millions of workers had started quitting their jobs in search of better opportunities. In the months surrounding Abruzzo’s swearing-in, strikes broke out at Frito-Lay, Nabisco and John Deere, and popular support for labor unions had reached the highest point since 1965.
Sitting in a corner office overlooking the Washington Navy Yard, Abruzzo has fired off some 11 legal memos, nearly double her predecessor’s output over a similar period.
She aims to reverse a host of Trump-era decisions. She wants the NLRB to overturn a measure that prevents union organizers from accessing company property, and another that bans workers from organizing on company email. But she also wants to go further.
She has requested that staff attorneys sharpen financial penalties against employers that illegally fire employees for union activity. In the past, employers have been required to provide back pay, but she says that they should be held responsible for expenses workers accrue while unemployed, such as health-care insurance, loans, credit card late fees and even lost homes or cars. She has asked agency officials to require employers to pay unions for expenses they incur fighting illegal anti-union activity. She has also argued that students athletes, such as football players at Northwestern University, who generate millions of dollars in profit for colleges, should be able to unionize.
In perhaps her boldest proposal, Abruzzo wants to revive a mid-20th-century doctrine, known as “Joy Silk.” The standard would force employers who violate labor law to recognize unions without a secret-ballot election, if most of a workforce has indicated interest in unionizing by signing union authorization cards. The doctrine was abandoned by the board in 1969.
“Back when Joy Silk was the law of the land, there were about 6,000 to 8,000 union elections a year. Now there’s about 2,000,” said Brian Petruska, a union lawyer who has written extensively about Joy Silk.
Employers have balked at the idea of Joy Silk returning, saying it would shortcut the union campaign process and fail to give workers enough opportunity to make an informed, private decision about whether they want to unionize.
Abruzzo is also coordinating with to other federal agencies and has met several times with Federal Trade Commission Chair Lina Khan, who has vowed to rein in the power of Big Tech. Abruzzo said these partnerships have allowed the agencies to tackle complicated workplace issues, in particular the misclassification of gig workers as independent contractors.
But there are limits to what Abruzzo can accomplish during her four-year term, which goes through July 2025. The agency’s budget has been given no new funding in nine years. It has lost 50 percent of its field staff since 2002, meaning staffers have bigger caseloads and aggrieved workers wait longer to receive relief, board officials said. The speed at which the board operates can be critical for the success of union elections, labor organizers said.
“Abruzzo is doing an amazing job and has this ambitious agenda but she just does not have the resources to execute it, and that’s because Democrats have not made this a priority in government funding bills. That needs to change,” said one senior congressional Democratic aide, speaking on the condition of anonymity to describe private dynamics. “We’re gearing up to make this a fight in the coming months.”
Labor organizers say the five-person NLRB panel that rules on cases Abruzzo has selected is moving at a frustratingly slow pace, despite its Democratic majority. They point to the amount of time it has taken to reverse Trump-era union election rules.
Abruzzo is undeterred and points to renewed popularity in unions and the NLRB. She credits workers themselves, and labor leaders such as Christian Smalls, the leader of the independent union that won the first election at an Amazon warehouse in April.
“Chris Smalls said that the hardest part of unionizing was convincing his colleagues they had the right to organize, that there was an agency out there that would protect them,” Abruzzo said. “He told them, ‘No, you have a right to do this. They can’t fire you.’ I appreciate that he was an ambassador for our agency.”