THE MERCILESS conditions at an eastern Illinois cooking-spray factory cried out for a union. Poverty wages, grueling shifts, daily indignities, and policies so punitive that grieving workers burying family members were disciplined for being absent.
With jobs scarce in their once-thriving industrial region, the owners of Full-Fill Industries believed they held all the cards.
They clung to that belief even as workers bravely organized in 2019, becoming members of Danville Local 538. Management refused to bargain, eroding the unit's support with dirty tricks and withdrawing recognition after a year, all the while shrugging off grievances and unfair labor practice complaints.
Employers knew they had little to fear at the time from a National Labor Relations Board openly hostile to workers and unions.
Then Joe Biden took office and immediately fired the board's virulently anti-union general counsel.
With new lawyers and a board majority reflecting the Biden administration's pro-union values, today's NLRB is a sizzling revival of the agency created 87 years ago to protect workers' rights and encourage collective bargaining.
As swiftly as possible, the new team is undoing the wreckage of its predecessors, rebuilding field staff, and going to the mat for workers in ways that were unimaginable in the recent past.
For the struggling Illinois unit, that means a board willing to fight for them in federal court to force their employer to the table.
"Oh man, politics matter," said Local 538 Business Manager Mike Arbuckle. "If you don't think so, look at how the NLRB is standing up for us. They have our backs and that wasn't true when this campaign started. We'd file ULPs and they weren't going anywhere because of who was sitting on the board."
THE NLRB is uniquely important to workers' rights.
Labor and its allies hail the bounty of executive orders lifting up workers that Biden has signed since taking office. And they are pushing hard for Congress to codify the progress by passing the landmark Protecting the Right to Organize Act (PRO Act).
But policy and law only go so far without enforcement.
"We can organize workers, we can support them and fight for them in every possible way, but by ourselves we can't make an employer recognize a union and bargain in good faith," International President Lonnie R. Stephenson said. "Only the NLRB can do that, backed by the courts."
The board is both the steward and policing arm of the 1935 National Labor Relations Act, a law that was never meant to be neutral.
Its language protects workers and employers alike, but the balance tilts toward the underdog. As spelled out in Section 1, the Act makes it official U.S. policy to address the "inequality of bargaining power" by "encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association."
Under attack from day one, the law took its first big hit with the anti-union Taft-Hartley Act of 1947 and has been eroded ever since by Congress and the courts.
How the NLRB interprets and applies the evolving law — with more deference to workers, as the NLRA intended, or as a cudgel for employers — depends on who's in charge.
The party in power in the White House gets three of the board's five seats. By no measure do workers always win with Democrats in control, nor do they always lose under Republicans.
But any sense of fair play went out the window during the previous administration, the era of career union-buster Peter Robb as general counsel and a lockstep board majority that twisted precedent, logic, and common sense to arrive at pro-employer decisions.
Meanwhile, one or both of the seats intended for Democrats were left empty for long stretches, largely due to then-Senate Majority Leader Mitch McConnell's refusal to act on nominations.
It took the Biden presidency and his party's slender hold on the Senate to restore a deliberative board that is serious — and enthusiastic — about its obligation to the NLRA.
General Counsel Jennifer Abruzzo was first through the door after being confirmed by the narrowest of margins in July, a party-line 50-50 Senate tie broken by Vice President Kamala Harris.
She quickly began shaking things up with an ongoing series of memorandums making sharp U-turns in policy and advancing new ideas.
The opening line of a memo embracing the goals of the first-ever White House Task Force on Worker Organizing and Empowermentcut straight to the heart of her ambitious agenda.
"There is no better calling," Abruzzo wrote, "than to ensure that the rights of workers in this country are protected and that violations of their rights are swiftly remedied."
THE NEW BOARD majority is made up of Chair Lauren McFerran and members Gwynne Wilcox and David Prouty, both former union-side attorneys who were confirmed by the Senate on the heels of Abruzzo.
Board members serve five-year terms, meaning there is overlap between administrations. The Biden nominees couldn't be seated until two GOP terms expired.
McFerran was appointed by President Obama in 2014 and four years later was the board's only remaining voice for workers. She used it to full effect, writing blistering dissents of her counterparts' rulings.
Rebuking a 2019 decision against the United Auto Workers, for example, she said it "reflects a failure to engage in the reasoned decision-making required of the board. There is no rational connection between the reasons offered by the majority for rejecting established law and the new approach it adopts here."
She was silenced later that year when McConnell stalled a vote to reseat her for a second term. Until he relented eight months later, the anti-worker bloc had full ownership of the board.
On Inauguration Day 2021, President Biden handed her the gavel. With the additions of Wilcox and Prouty in August, the pendulum's swing was complete.
THE BOOM in organizing drives across the country is one of the most visible signs of the board's new temperament.
As workers fight for unions at some of America's most prominent corporations, rulings from regional NLRB offices and the national board are tripping up management schemes to stop them.
That includes the IBEW's campaign at Colectivo Coffee, where baristas endured bitter anti-union backlash to join Milwaukee Local 494 and Chicago Local 1220.
When they voted in April 2021, roughly a year after starting the drive, the result was a 99-99 tie with 16 challenged ballots favoring the union. An NLRB regional director upheld enough of them to put the workers over the top, and the board ruled against the company on appeal.
Colectivo is prolonging the battle with another appeal, but Local 494 Business Manager Dean Warsh isn't sweating it. He has trust in the new board and calls the case officer assisting them "a dream to work with."
He said interactions with NLRB field staff are markedly different now, even with some of the same people they approached for help earlier.
"They were under pressure to do what they were told to do and now a weight's been lifted off their shoulders," Warsh said.
"You can see from the tone of the email that comes back that it's completely changed from the previous administration to the new administration. You can tell that these people want to be in there fighting for workers and they couldn't do that for years. They're relieved to be able to do their jobs again."
After the NLRB certified the vote Aug. 23, Warsh put out a news release saying he hoped the win "inspires others in the hospitality/service industry to organize a union at their workplace!"
That very day Starbucks workers in Buffalo, N.Y., tweeted their intent to do so. Now more than 100 organizing drives are underway at the chain nationwide as union supporters chalk up one NLRB victory after another.
THE DIRECTIVES from the general counsel's desk cover a lot of ground, but a similar current runs through all of them: stronger protections for workers and greater consequences for employers who violate their rights.
A February memo doubled down by seeking to expand the use of 10(j) injunctions, named for the section in the NLRA that allows the board to seek relief in court when unfair labor practices call for urgent action.
Now Abruzzo wants to apply them when workers are threatened or otherwise coerced during an organizing campaign.
"Threats often escalate into action, imposing even more burdens and chilling effects on employees," she said in announcing the strategy. "They are not mere words ... but a prelude to what is likely to come to pass. I believe [they] need to be promptly stopped."
Abruzzo broached the subject in a December interview with Law360 when asked if the Board has any real power to punish employers under the NLRA.
She said passing the PRO Act would help, but that the NLRB needs to better deploy the weapons it already has. Injunctive relief is one of them.
"I plan on pushing that even further: If there are significant threats — 'I'm going to discharge you if you continue to seek support of your co-workers to bring a union in here' — [even] without actually firing that person, I've asked the regional directors to send those cases up here for authority to go into court and seek an injunction."
Abruzzo began her NLRB career in the field, climbing the agency's legal ladder for 20 years before serving as the chief attorney for the Communications Workers. Union lawyers applauded her nomination to be the board's top cop but had no idea how bowled over they'd be in just seven months.
"Jennifer Abruzzo has been as aggressive as we've seen as a general counsel in trying to protect workers' rights," said IBEW General Counsel Jon Newman. "We're thrilled with her, and every indication is that we're going to continue to be."
MAKING WORKERS whole financially when they are unlawfully discharged or otherwise harmed is a hot topic for Abruzzo and the board.
But existing language on remedies doesn't allow for that, and any change in precedent requires relevant, available cases.
Enter six IBEW-represented workers in California who were laid off in 2019 from Thyrv, Inc., a conglomerate that grew out of the original Yellow Pages company.
IBEW lawyers argue that the layoffs were illegal, causing "direct and foreseeable harm" through loss of income and health care, an extra burden for three of the workers who are disabled.
An administrative law judge sided with the company. Now, the union's appeal has landed at the center of a conversation about "consequential damages."
McFerran raised the concept in the case of a nursing home that terminated employees' health insurance without telling them or their union. Workers racked up medical bills they couldn't pay, leaving one a half-million dollars in debt after emergency surgery.
While the full complement of Democrats wasn't seated when the case was decided, the company's actions were too egregious even for the GOP members. But they wouldn't consider enhanced compensation.
McFerran and Abruzzo make it clear that damages don't need to be medically related or anywhere near six figures to be consequential. They cite wrongfully fired workers drowning in interest and late fees on credit cards, incurring penalties for tapping retirement funds to cover living expenses, and losing their homes and cars.
They needed a new test case and found one in the Thyrv workers' appeal. Based on it, the board issued a call last November for amicus briefs — outside opinions of stakeholders and experts.
"I think it reflects a board that is interested in making sure workers are truly made whole when they are discriminated against," Newman said, "as opposed to limited remedies that don't deter unlawful employer conduct."
The timing was unusual given that the board had yet to rule on the appeal, and still hadn't as of early March. But he said they wouldn't be shining a spotlight on the case if they weren't leaning the union's direction, clearly seeing its potential to move the goal posts for workers.
Board requests for amicus briefs in other cases are on the rise. Newman said the pace and quantity alone are revealing. "All those invitations for briefs indicate that the board is interested in overturning some pretty outrageous precedents.”
His assessment of the board's momentum is widely shared in the legal community. But not everyone is happy about it: The Chamber of Commerce and human resources journals are spilling over with panic among management lawyers and their clients.WHEN THE media reports on the NLRB, it is typically the rulings in brand-name organizing drives that grab their attention.
But standing up for unseen workers who suffer some of the worst abuses from employers is the meat and potatoes of the board's work.
The IBEW members who produce, pack and ship aerosol food spray at Full-Fill Industries in Illinois know how much that matters.
In November, a core group of them testified before an administrative law judge via Zoom to defend their union against a suspect petition to decertify it.
The company reneged on an agreement to allow witnesses on shift at the time of the hearing to go to Local 538's hall in Danville. Instead, workers nervously told their stories in a factory office with bosses on the other side of the wall.
But it didn't stop them from recounting intimidation, lies, unjust firings and management's audacious and damaging insinuations that the union stood between workers and their holiday bonuses.
"They showed so much courage," Sixth District organizer Joe DiMichele said. "They rely on these jobs and there aren't many other options. But they stood up and testified. They're absolute champions."
The judge's ruling Jan. 24 was an epic rebuke, finding no credibility in the company's side of the story and ordering it to recognize the union, bargain in good faith, rehire activists and cease and desist from a litany of unlawful behavior, including employee surveillance — another stated battlefront for the board.
Full-Fill immediately filed to stay the order pending an appeal, the typical delay-and-deny game plan of union-busting employers.
But the NLRB isn't playing. The regional office in Illinois went straight to federal court for an injunction to force the company to obey the judge's order no matter how long the legal process drags on.
The union was still waiting on the ruling in early April but had no doubts about the new NLRB's commitment to justice.
"The board agents, they've been outstanding," said Arbuckle, the business manager. "They've seen how egregious the violations are and how much control the company has over these workers' lives. They're doing everything they can to give them the respect and dignity they deserve."