WASHINGTON — Democrats should use their impending majorities in both congressional chambers to seek broad federal labor law reform beyond what past efforts sought to address, former National Labor Relations Board General Counsel Jennifer Abruzzo said Thursday.
Speaking at the American Bar Association’s annual labor and employment law section conference, Abruzzo, who served during the Biden administration, said she was “tired of hearing about the PRO Act.” That refers to the Protecting the Right to Organize Act, a signature Democratic bill to amend the National Labor Relations Act.
The party’s legislators have repeatedly failed to pass the PRO Act; the bill earned the narrow approval of a Democratic majority in the House of Representatives in 2021 but did not clear the Senate. Instead of a repeat, though, Abruzzo said lawmakers should use the gains of Tuesday’s midterm election results to seek a “PRO Act plus” that goes even further.
“We need to be looking beyond just the PRO Act and see how we can ensure that we’re addressing wage stagnation and income inequality in this country [and] increase worker voices and representation,” she continued.
Abruzzo highlighted a few potential areas of focus, namely increased regulation of artificial intelligence, bans on captive audience meetings and restrictive covenants, and sectoral bargaining protections.
The former general counsel also mentioned the increased role of state governments in adjudicating labor issues. When NLRB lost its quorum last year, both California and New York enacted laws that would have granted their respective Public Employment Relations Boards the authority to handle unfair labor practice charges. NLRB swiftly challenged both laws, which were blocked by federal courts. The agency and New York agreed to dismiss their lawsuit over the issue in July.
But federal lawmakers can enact legislation to clarify that states are not preempted from acting in other ways to augment workers’ rights under the NLRA, Abruzzo said. For example, some have enacted laws guaranteeing a right to organize — Vermont voters approved a ballot initiative in this vein on Tuesday — or that specify how a dispute is to be resolved in the event that the NLRA is declared unconstitutional, or where the NLRB lacks jurisdiction over a dispute.
Abruzzo was joined at the event by former Republican NLRB member Marvin Kaplan. Kaplan expressed concern over state PERBs’ efforts to assume more authority over areas traditionally subject to NLRB’s jurisdiction, stating in part that this may create a conflict with one of the “fundamental reasons” why the agency exists, specifically its role in providing one federal system that provides equal protection for all workers.
“Bifurcating these systems the way these state systems imply we should be creates this dysfunction and uncertainty in a way that I don’t think is easy to pull back,” Kaplan said.
But he also expressed interest in the other ways states have sought to address areas of labor organizing that are outside of the NLRB’s purview. In Pennsylvania, for instance, state legislators have introduced a bill that would prohibit employers from terminating the healthcare benefits of striking workers.
Abruzzo noted that while NLRB could be more active in some areas, such as providing NLRA-related guidance to states and parties to disputes, it currently lacks the resources to do so. The former general counsel has long maintained that the agency suffers from a lack of staffing and funding, raising this point at the 2022 edition of the ABA event. She agreed, too, that the NLRA’s standard is needed to ensure consistency across states.
“It is a problem,” Abruzzo said of the potential for states to have widely varying interpretations of labor rights under a decentralized system. “Which is why whatever labor law that exists needs to be the floor from which states can augment or go above, but cannot go below.”