Union Attorneys Thinking Bigger Under Biden NLRB

The so-called captive audience meeting, in which employers preach to workers about unions' drawbacks during organizing campaigns, has been a staple of the anti-union arsenal for decades. Labor attorney Gabe Frumkin is hoping the new-look National Labor Relations Board will change that.

Frumkin, an associate with Seattle union-side law firm Barnard Iglitzin & Lavitt LLP, has filed a series of charges accusing equipment rental company United Rentals Inc. of interfering with an attempt by workers at its Tukwila, Washington, facility to organize with a Teamsters local. Among the allegations: that the company's frequent mandatory meetings to sway workers against unionizing, amid a suffocating anti-union campaign, coerced workers not to organize in violation of the National Labor Relations Act.

It's an ambitious theory that challenges long-held notions of what's permissible for employers during organizing drives. But under new, worker-friendly leadership at the Biden NLRB, Frumkin and others spy opportunities to go big.

"There's this sort of seminal law review article about the ossification of labor law and how labor law is kind of stuck in the 1940s," Frumkin said. "This new board gives us an opportunity to modernize labor law."

As the NLRB moves ahead with its worker-friendly agenda in year two of President Joe Biden's administration, union-side attorneys like Frumkin say they feel emboldened to pursue novel theories, challenge business-friendly precedents and seek more drastic measures to curb labor violations.

Union attorneys' optimism for the Biden board's potential to shift policy in workers' favor crystallized early, with the president's Inauguration Day decision to remove NLRB general counsel Peter Robb, an appointee of former President Donald Trump.

At the time, attorney Laurie Burgess was pursuing a novel claim alleging Google violated the NLRA by firing a handful of workers for protesting its business relationship with federal immigration enforcers.

Burgess — an envelope-pusher even in the face of labor policy headwinds — initially brought the charge in December 2019 alongside more traditional allegations that Google canned workers who objected to its retention of an anti-union consulting group. After board prosecutors brought a case based on those allegations but not the immigration claims, Burgess appealed the dismissal decision to the Office of the General Counsel's D.C. headquarters.

"It was days before Biden's inauguration, and I was very hopeful that things would happen," Burgess recalled. "I was of course delighted when Peter Robb was foisted out right away by the Biden administration because that gave me hope my case was going to have legs."

Soon after canning Robb, the president appointed Peter Sung Ohr, a career NLRB official well-liked by labor advocates, as acting general counsel. In a March memo, Ohr said advocacy for social justice issues may fall within workers' NLRA-protected right to organize; in May, his office partially granted Burgess' appeal, adding claims related to the immigration protesters to the pending suit.

The enforcement climate at the board has only become more friendly to workers following NLRB veteran Jennifer Abruzzo's July arrival as the permanent general counsel.

As general counsel, Abruzzo decides what cases to bring and what theories to present to the five-member board, which in turn sets policy through precedential rulings. In August, Abruzzo issued a memo detailing her numerous legal priorities, among them broadening the scope of workers' right to act collectively. In the months since, some labor attorneys have obliged Abruzzo by filing charges that raise issues she highlighted.

"We're trying to raise these issues every place we can," said David Rosenfeld, an attorney at California law firm Weinberg Roger & Rosenfeld. "We keep getting encouraged by the national unions to raise them."

Rosenfeld said he has an active challenge to a board ruling known as Care One at New Milford, which is on Abruzzo's list. In that 2020 decision, an NLRB majority said employers may not have to bargain with unions before doling out discretionary discipline in the period after workers vote to unionize but before they reach a contract.

Seth Goldstein, who represents workers seeking to unionize Amazon's Staten Island campus, recently filed a charge he's hopeful will be a vehicle for Abruzzo to challenge a doctrine known as Tri-Cast, which is on her list.

In Tri-Cast, a 1985 ruling, the board held that it's not an unfair labor practice for employers to tell workers that unionizing would place a barrier between them and management. Goldstein's charge, filed in November, accuses Amazon of doing just that.

"We're issue-spotting," Goldstein said. "That's what lawyers do."

But while Abruzzo's memo has put labor lawyers on notice about her priorities, their ability to tee up issues is constrained by what comes across their desks.

Stephen Yokich, a partner at Chicago union-side firm Dowd Bloch Bennett Cervone Auerbach & Yokich LLP, said he's eagerly read each enforcement directive to come out of the general counsel's office, but he and his colleagues have had little occasion to put them into practice.

"We're still in the process of identifying the right vehicles so that we could take advantage of an attitude that's pro-worker and pro-collective bargaining," Yokich said.

Yokich said he's on the lookout for cases that present multiple angles for attacking something he sees as an NLRA violation. Filing a case that seeks a change in case law is an easier call when there's an alternative route based on solid precedent, he said. The more damage the alleged violation has done, the more sympathetic the client will be in litigation, he added.

In addition to highlighting issues for review, Abruzzo has moved to step up enforcement by more frequently asking courts for injunctions rolling back alleged illegal acts while the board's legal process plays out.

Burgess, the attorney behind the Google case, said this NLRB power is vital to vindicating workers' rights because the consequences of violations, such as targeted firings to sour workers on unionizing, otherwise go unremedied during litigation.

"It's time-consuming, it's difficult and it's an uphill battle, but I think it's incumbent upon labor lawyers to take this seriously, to push for that kind of relief," Burgess said.

Frumkin, the Seattle attorney, said he's considered seeking injunctions "much more frequently than I ever would have in the previous administration" in the wake of Abruzzo's directive. Along similar lines, NLRB field agents have told him they're being encouraged to "think creatively" about the remedies they seek in litigation to correct unfair labor practices, he said.

This instruction dovetails with a pending NLRB initiative to broaden the spectrum of remedies it orders to include "consequential damages" that compensate workers for the consequences of unfair labor practices. In a recent brief, Abruzzo suggested such damages could cover investment losses, insurance costs and emotional distress.

Rosenfeld said he now includes a request for consequential damages in every case he brings, including in one case in which the consequences haven't yet manifested for the fired workers. As the case proceeds, the workers could incur increased child care, health care and credit card costs, and Rosenfeld aims to hold the employer accountable, he said.

"All sorts of damages occur because you lose your job, and there are a whole bunch of people who lost their job in this case, so I'm just throwing it in," Rosenfeld said.

--Editing by Abbie Sarfo.

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