NLRB General Counsel Looks to Hit Union Busters With Big Damages

The National Labor Relations Board’s top lawyer plans to aggressively target several legal precedents before the presidential election, such as overturning case law that prohibits the agency from seeking monetary damages tied to an employer’s unlawful refusal to bargain.

In a wide-ranging interview with Bloomberg Law and Bloomberg News on Wednesday, NLRB General Counsel Jennifer Abruzzo also said she plans to push the board for rulings to ban noncompete agreements that restrain worker mobility and mandatory “captive audience” meetings for companies to express anti-union opinions.

In making her case, Abruzzo name-checked some of the richest employers on Earth—including Elon Musk, Starbucks Corp., and Amazon.com Inc.—accusing them of using their profound wealth to disregard labor law.

Starbucks, Amazon, and Musk’s various companies have all been the subject of unfair labor practice charges from the general counsel’s office.

Abruzzo sought to overturn the Nixon-era Ex-Cell-O doctrine—which prevents the board from imposing damages on companies that illegally refuse to bargain with a union—through a case against Starbucks last year. But the NLRB chose to sever the Ex-Cell-O issue and address it “at a later date.”

Abruzzo on Wednesday called for an end to Ex-Cell-O, saying doing so would hold employers accountable.

“You need to hit employers in their pockets,” Abruzzo said. “And I’m not saying that this is going to be a panacea, but if you force employers that are bargaining in bad faith, unlawfully, to pay for the workers’ lost opportunity to make gains in bargaining, then hopefully it will prevent at least some employers from actually going down that road, because they’re going to have to pay it on the back end with interest.”

Captive Audience, Noncompetes

Abruzzo touched on priorities she outlined two years ago to overturn roughly 50 board precedents.

The NLRB already has adopted several of her desired changes to labor law. These include updates to the elections process, protections for workers using profanity, and limitations on handbook provisions that could interfere with employees’ rights to organize.

Abruzzo again called for the end of mandatory captive audience meetings, which she believes to be unlawful under federal labor law. The practice was made legal in the 1940’s through the NLRB’s Babcock & Wilcox ruling.

She also reiterated that noncompete agreements should be a priority for the board. Those pacts generally prohibit employees who leave a company from working for a competitor within a certain period of time or geographic area. They’ve also been a target of the Federal Trade Commission and various state legislatures.

“On the ground we are seeing noncompetes that low-wage and middle-wage workers are required to sign—sometimes in states where they’re not even enforceable,” Abruzzo said. “They’re not privy to any confidential or proprietary information. It’s just a way to limit the weapons that they have within their workplace to actually improve their conditions.”

She didn’t hold back on criticizing Musk and former Starbucks CEO Howard Schultz for their aggressive and costly legal tactics to beat back unions. Both have been vocal in their opinions against unionization at their respective companies.

Starbucks has taken its opposition to NLRB rulings all the way to the US Supreme Court, while Musk’s company SpaceX is challenging the constitutionality of the agency itself.

“At the end of the day, if the law is not on your side and the facts aren’t on your side, just pound the table and yell like hell. And that’s what I feel that Elon Musk is doing,” Abruzzo said. “And that’s what I feel that Schultz is doing, and, you know, Amazon is doing.”