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Starbucks Workers Are in the Fight of Their Lives for a Contract

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There are still dozens of stores waiting for their elections, and more stores filing for election every week. These thousands of newly unionized workers are in the fight of their lives for a contract.

The company is fighting dirtier and dirtier all the time, from closing stores to firing more than 80 union leaders across the country to now filing suit at the National Labor Relations Board claiming that the Board itself is committing fraud by colluding with the union. Their campaign is getting more and more vicious.

[Corporate’s] theory of the campaign, in my mind, is to crush the momentum. They are counting on us not being able to continue to build and organize. They’re counting on the idea that there’s not going to be enough community solidarity to really stand up to their bullying, and that they’re going to be able to quash the campaign and wait it out and then decertify stores.

December 9 we’ll cross a year since the first stores voted for a union. The certification year ends at that point and the company can begin to run decert[ification] petitions. 

[Editors’ note: Under federal law, a union cannot be voted out, or “decertified,” within the first year of its having been certified. Often employers will stall on bargaining for a year so the decertification window opens, and covertly encourage workers to decertify the union at that point.] So we’re in the fight for our lives for a contract right now.

A National Voice

These workers have done a lot of work internally to build national structures so they are speaking powerfully in one voice to the company. There’s a national committee called the National Bargaining Committee, which is working hard to draft a set of bargaining demands. They’re going to bring it back down to the base [of workers] for revisions and then we’re going to introduce that same proposal at every store where we can get this company to bargain.

We’re going to ask the company to meet with the national bargaining committee. I’m assuming they’re going to say no. They want to bargain store by store. So workers are planning to coordinate with each other and put forward the same proposal over and over.

It’s going to take a hell of a lot of militant collective action and solidarity from the labor movement; community, student, and faith allies; and customers to move the needle at the bargaining table.

Pledge Creates a Rapid Action Network

That’s why we’re asking people to sign the No Contract, No Coffee pledge. What it says is we’re going to follow the lead of workers, and we’re going to support them in the way they’re asking for support. It’s our way of building a rapid action network for the campaign.

If a store in your community goes on strike, you’ll get a message over email or by text, whichever you prefer, saying, “Hey there’s going to be a picket line, show up in solidarity with those workers.” Or “We’re going to rally at the corporate office on this day.” Or “We have an action at the Mellody Hobson-owned Denver Broncos game.” [Hobson is the chair of the Starbucks board.] It’s a way to alert people about how they can support the campaign.

Sip-ins [where supporters gather in a store to drink coffee] are another way. Sometimes workers call for sip-ins to happen in the week before their election, to pump people up, or if they know there’s going to be a particular kind of union-busting in their store on that day. Some sip-ins have been effective in canceling [mandatory anti-union] captive-audience meetings.

There are lots of creative ways that customers are supporting picket lines [during strikes]. About 90 percent of picket lines have been successful at closing down the store. In some others, the company manages to get enough managers in the store to keep getting coffee out the window. But customers have supported in all kinds of creative ways, including finding ways to be disruptive in the drive-through line. These are not tactics devised by workers or the campaign at all, just things that customers are coming up with.

If you sign the pledge, the first thing we’ll ask you to do is to adopt a store. If you adopt a store, we’ll hook you up with one in your area that’s union, so you can find a way to support that store, and help create a system of aid for those workers.

Labor Day Plans

For Labor Day we’re really focused on having sip-ins at every single unionized or unionizing store. We’re going to try to do at least 300. Workers are also using that weekend to deliver petitions and hold marches on the boss. I would not be surprised if there are strike actions in protest of ULPs [unfair labor practice charges the union has brought to the NLRB] on that day or on that weekend.

We want to get 30,000 more signers on the No Contract, No Coffee pledge on Labor Day weekend. Because we know we’re going to need massive public support.

We have to bring a lot of economic pressure to bear on Starbucks. I think strikes are an important piece of that. But we need a hell of a lot of solidarity from allies in order to amplify the voices of workers at the stores that have organized.

This blog originally appeared at Labor Notes on August 25, 2022. Published with permission.

About the Author: Daisy Pitkin is the national field director for Starbucks Workers United. This blog is a transcription of her responses in an interview.


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Viewpoint: The NLRB is Underfunded and Understaffed—And That’s a Big Threat to the Current Organizing Wave

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Gay Semel

The budget for the National Labor Relations Board for fiscal year 2022 was $274 million, which might sound like a lot of money. But it is the same amount as the Board’s budget for Trump-era fiscal years 2021 and 2020, and that is a problem.

In fact, the NLRB has not had an increase in funding since 2014, the year that the Republicans took control of Congress during the Obama administration and reignited their decades-old campaign to deep-six workers’ rights to unionize.

No increase “means a cut to the agency’s funds, due to inflation and other factors,” explains Burt Pearlstone, president of the NLRBU, the union representing workers at the agency.

The Biden administration had sought a 10 percent funding increase for the NLRB this year. But Republicans dug in to oppose an increase, claiming the cost was too high. Privately many were simply doing the bidding of their corporate backers to further weaken an agency already in trouble. When the overall budget was finally passed in March, the administration had accepted flat funding.

HOLLOWED OUT, ON PURPOSE
A goal of the Trump administration, and the Republican Party generally, has been to decimate what they refer to as the “administrative state.” During the Trump years, agency heads were appointed to hollow out federal agencies from within. At the NLRB, Trump named Peter Robb, a management lawyer famous for breaking the strike of air traffic controllers under Reagan, as General Counsel.

Robb set out to weaken the agency by overturning pro-union case law and reducing agency staff, but many of his initiatives were stymied.

Case law at the Board changes slowly. Before a General Counsel can put into place changes that he or she seeks, the right case must be filed with the agency; the case must be tried before an Administrative Law Judge (ALJ) and then the Board in Washington, D.C.

Some of Robb’s initiatives were stopped by ALJs; for others, he did not find the appropriate case. Had Trump won a second term and Robb stayed in power, the story would be quite different.

Nonetheless, Robb was able to do significant damage to the agency. During his reign, jobs were left vacant across the country. There is always a certain amount of turnover, as staff move on to other jobs; those jobs were not backfilled during Robb’s tenure. In 2018 he offered buyouts, enticing additional staff to leave, and those jobs also were not backfilled.

The NLRB even failed to spend its budget in 2018 and 2019, prompting an investigation by the Board’s Inspector General. Underspending violates the laws establishing Congress’s spending authority (as does overspending).

As the NLRB Regions lost people, the workload increased significantly for those still working at the agency. In 2021, when President Biden took office, there already was a significant backlog of trials waiting to be scheduled. Those that were scheduled took longer and longer to get before an ALJ.

A NEW SHERIFF
To his credit, Biden took the unprecedented action of firing Robb on his first day in office. Shortly after, he appointed Jennifer Abruzzo as the agency’s General Counsel.

Abruzzo had worked at the NLRB in various capacities, including as Assistant General Counsel, for 23 years. When Trump appointees took over the agency, she left and went to work for the Communications Workers (CWA).

Abruzzo knows the agency inside and out. She wants to enforce the original intent of the National Labor Relations Act: to level the playing field between workers and employees, and to protect the rights of working people collectively seeking to better their lives.

Almost immediately, Abruzzo issued memos alerting the agency of cases and practices she would like to see revisited and revised. She called for reinstating the Joy Silk standard (where the Board would require an employer to recognize the union once a majority of workers had signed union authorization cards), increasing penalties on law-breaking employers, declaring mandatory anti-union meetings unlawful, and other pro-worker initiatives. The labor movement took notice.

Biden also appointed two union-side labor lawyers to fill existing vacancies on the five-person Board: Gwynne Wilcox and David Prouty. The majority of Board members are now Democratic appointees. Both Wilcox and Prouty have fought in the trenches for years on behalf of workers and unions and understand how NLRB case law and procedures can be used to help workers or to hinder them.

HAMSTRUNG BY UNDERSTAFFING
The new appointments to the Board and the new General Counsel are exciting news—and not a moment too soon. Union organizing is way up. Workers across the country are taking on big corporations like Starbucks, Amazon, and Trader Joe’s, as well as seeking to unionize in unexpected places—comics, gaming, tech.

Filings at the NLRB for union elections from October 2021 to March 2022 were up 57 percent compared to the same period a year earlier. In response, employer lawbreaking is increasing. Unfair labor practice charges against employers are up 14 percent for the same period.

All the pieces are in place for positive developments at the NLRB, except for one thing—there are fewer people to do the work.

The Republican attack on the agency, accelerated under Robb, is being felt now. Between 2012 and 2022, the field staff at the agency was reduced by more than 40 percent.

Field staff are the lawyers and examiners who handle union elections, investigate cases, and prosecute unfair labor practices, as well as the administrative professionals who support this work. At the Brooklyn Region, which ran the elections in Staten Island at Amazon, the staff is down 40 percent since 2012.

Everything now takes longer. Delay favors the employer. Workers begin to feel that they can’t win and give up or move on.

DEATH BY DELAY
That is Amazon’s goal in Staten Island. The company filed 25 objections to the election at the JFK8 warehouse. Along with claiming objectionable behavior by the Amazon Labor Union, Amazon alleges that the Brooklyn Region of the NLRB delayed the investigation of unfair labor practice charges, instead of dismissing them, creating the impression that Amazon violated the law affecting the vote.

Even though the Brooklyn Region received assistance from field staff at other Regions to help with the Staten Island vote, Amazon claims that the agency mishandled the election by providing insufficient staff for the election. Thus, Amazon is claiming that the underfunding of the agency is cause for overturning the vote.

Amazon’s claims of violations on the part of the Brooklyn Region also caused the hearing to be moved to the Region in Phoenix, Arizona, to avoid a conflict of interest. This, too, created delay. The hearing in Phoenix did not begin until June 13, months after the actual vote.

The objections hearing alone may take months, and then there will be many more months before the briefs are filed and a decision rendered. Other legal delaying tactics will follow.

Dragging things out is Amazon’s goal; understaffing aids that goal.

Even if the agency adds staff to resolve issues at Amazon (which it has done), fewer field staffers are available to handle the increased caseload involving workers and unions at other companies.

Workers at the Brooklyn Region feel overwhelmed by the workload. Many have begun talking about leaving. The Brooklyn chapter of the NLRBU has met with Abruzzo seeking relief.

“Brooklyn is not the only Region feeling overwhelmed by the workload,” says Pearlstone. He hears this from workers at NLRB Regions across the country. “The only solution is more money to hire more people.”

BIDEN MUST FIX THIS
President Biden claims to be pro-worker and pro-union. He has supported the PRO Act, recommended greater worker rights in the federal government, issued a pro-worker message to employees at Amazon’s Alabama warehouse, and jubilantly told Amazon “Here we come!” after the first union win in Staten Island. And he has nominated a General Counsel and new Board members that care about enforcing the National Labor Relations Act.

But without sufficient funding for the NLRB, all of Biden’s statements could end up being little more than hollow promises.

Unions and labor activists need to demand that the Biden administration find additional resources for the NLRB now. Adequate funding for the agency has got to be a major issue for the labor movement—or else the wave of new organizing that has ignited our imaginations and revived an understanding of the importance of labor may wither away.

Gay Semel is a retired union-side labor lawyer. She was District Counsel to District 1 of the Communications Workers in New York for more than 30 years. She also worked as a field attorney at Region 2 of the NLRB in Manhattan for two years. She is currently working on a book about a lengthy battle to get and keep a union at Brooklyn Cablevision.

This blog originally appeared at LaborNotes on July 6, 2022. Reprinted with permission.

About the Author: Gay Semel is a retired union-side labor lawyer. She was District Counsel to District 1 of the Communications Workers in New York for more than 30 years. She also worked as a field attorney at Region 2 of the NLRB in Manhattan for two years.


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The Lie that Helped Kill the Labor Movement

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Ian Ward

In late March of 1969, Dominick Manoli, an associate general counsel at the National Labor Relations Board, appeared before the Supreme Court to deliver oral arguments in National Labor Relations Board v. Gissel Packing Company, Inc. At issue in the case was the NLRB’s policy regarding labor unions formed by “card check,” a process that allowed workers to form a union by collecting signed authorization cards from a majority of their bargaining unit rather than by participating in a formal, NLRB-supervised election. The NLRB’s policy toward these unions, known as the “Joy Silk doctrine,” was clear: In the absence of a “good faith doubt” about the union’s majority status, employers were obligated to recognize it as the workers’ exclusive bargaining agent. If the employer refused without a good faith doubt, the NLRB would issue a bargaining order to compel them to come to the table.

But when Associate Justice Byron White asked Manoli to explain how the Joy Silk doctrine would apply to a situation in which an employer, without a good faith doubt about the authenticity of the union’s majority, declined to recognize a union on the grounds that the employer preferred a formal election, Manoli’s response came as something of a surprise: He stated the exact opposite of the board’s position.
“The [NLRB’s] general counsel will not issue a complaint … in that kind of situation where the employer says to the union, ‘I don’t wish to rely upon cards,” Manoli told White.

“‘I don’t care how many cards you’ve got. I just don’t like it,’” said White, ventriloquizing the position of an employer.

“That’s right,” Manoli replied.

No one knows for sure why Manoli misstated the board’s position — but regardless of his true motives, his arguments stuck. In its decision in Gissel, the Supreme Court concluded that the NLRB had abandoned Joy Silk altogether and put forward a new standard according to which the board would in general only issue bargaining orders if it could prove that an employer had committed “outrageous” or “pervasive” unfair labor practices that made the conduct of a fair election unlikely or impossible. Two years later, in 1971, Richard Nixon’s NLRB formally amended its policy to align with the court’s decision in Gissel, indicating in a written decision that it would no longer inquire into employers’ good faith — or lack thereof — when deciding whether to issue a bargaining order to an employer who declined to recognize a card check.

Half a century later, this episode has taken on new relevance as the labor movement and its allies in the Biden administration seek to correct Manoli’s mistake. In April, Jennifer Abruzzo, President Joe Biden’s choice to serve as the NLRB’s general counsel, filed a brief in an ongoing dispute before the NLRB recommending that the five-member board readopt Joy Silk as its governing policy. (The brief makes only passing mention of Manoli’s role in the end of Joy Silk, noting in a footnote that “the Associate General Counsel misrepresented controlling Board law regarding the Joy Silk doctrine” during oral arguments in Gissel.) The board, composed of three Democratic-appointed members and two Republican-appointed members, is expected to issue a decision on Abruzzo’s recommendation in the coming months.

For many labor advocates, reinstating Joy Silk would be the first step toward addressing the lasting consequences of Manoli’s reversal. Today, it remains virtually impossible for unions to receive recognition via card check, forcing workers to rely instead on the more protracted and legally-complex process of a board-supervised election. According to some labor experts, the election process in the post-Joy Silk era remains weighted heavily in favor of employers, who are able to use an array of unfair practices to disperse support for a union without triggering a bargaining order under the Gissel standard.

“It’s striking to look at the surge in unfair labor practices that basically started precisely after 1969,” says Brian Petruska, general counsel at LIUNA Mid-Atlantic Regional Organizing Fund and the author of a 2017 article about the Joy Silk doctrine for the Santa Clara Law Review that Abruzzo cites in her brief. “What [the data] shows is that the situation has continued to get worse.”

Against this background, Manoli’s performance before the Supreme Court holds more than merely antiquarian interest. In a policy area that’s often assumed to be governed by impersonal economic laws and abstract market forces, the end of Joy Silk is the rare instance where a major change in labor law can be traced more or less directly to the actions of a single individual. If Manoli’s decision to abandon Joy Silk in March 1969 contributed to the presently anemic state of the labor movement, then what possibilities could its readoption hold for the movement’s future?

This is part of a blog that originally appeared in full at Politico on June 7, 2022. Reprinted with permission.

About the author: Ian Ward is a contributing editor for Politico Magazine.


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A New Group to Organize College Football Players Just Launched. Incredible Timing.

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After last week’s NLRB memo made the unionization of college athletes a possibility, the CFBPA could become very important.

Last week, a memo from the top lawyer of the Biden administration’s National Labor Relations Board, Jennifer Abruzzo, asserted that certain college athletes should be legally considered employees. This decision took a wrecking ball to the myth of the “student athlete,” and opened the door for the unionization of players in big time college sports. For one recently launched group, the timing could not have been more fortuitous. 

The College Football Players Association (CFBPA) formally launched in July, with the goal of promoting labor organizing among college football players. Now, the nascent group finds itself presented with an unprecedented gift from the NLRB, few competitors in its newly energized space, and a clear path to becoming a leader in the drive to transform college sports forever. 

All they need now are the college football players. 

The CFBPA is the brainchild of Jason Stahl, a former professor at the University of Minnesota who became concerned about the exploitation of the school’s football players while he was teaching many of them in his classes. He left the school last year amid disputes over its treatment of players, and began working on a book about the topic. He put together the CFBPA with the belief that some kind of players association is necessary to enable players to begin organizing effectively. Stahl is the group’s executive director. Its advisory board includes current and former college players, ethics and labor law experts, and former University of Minnesota regent Michael Hsu, a longtime advocate of paying college athletes. 

In addition to fundraising (the group is seeking 1,000 recurring donors by the end of this month, a number that Stahl believes they will reach), the CFBPA’s biggest ongoing task is recruiting active college football players as members. That’s not an easy task, particularly because the fear of retaliation is high. For now, the group is allowing its current player members to remain anonymous, and is not releasing specific membership numbers. Players from at least three schools are already organizing with the group, according to Stahl. 

“Any workplace trying to unionize [can face retaliation], and this is the same thing. But within college football, it’s particularly pronounced,” Stahl says. If coaches or schools do retaliate with measures like withholding playing time from certain players, it can be virtually impossible to prove. “We’re trying to create an initial campaign that guys feel safe with.” 

The group’s goal is to unveil an organizing committee in December, made up of current players from a number of different schools, both big and small. By the end of the year, Stahl hopes to establish the first Players Association chapter at an individual school. 

The structure of college football poses some unique challenges for organizers. Though college football players as a group hold a great deal of leverage within a wealthy, powerful institution, individual players serve only brief careers—many may be on teams for only a year or two before leaving football and their schools entirely. And a good deal of uncertainty surrounds what the laws will ultimately be that govern the players’ labor rights, and whether collective bargaining would take place with individual schools, with athletic conferences, or with the NCAA itself. 

For its part, the NCAA issued a statement last week arguing forcefully against the NLRB’s memo, but politics and regulatory decisions could eventually make negotiating one big collective bargaining agreement covering all NCAA athletes a rational decision. Perhaps the only certainty is that if college athletes are to take advantage of their new labor rights, they will need to organize, and likely unionize, in order to create an entity capable of bargaining in the first place. 

Against this backdrop, the CFBPA aims to become a permanent institution, capable of serving the needs of players even after they have left college football altogether. That will require not just organizing the players of today, but building Players Association chapters durable enough to carry on for years. Structurally, such associations could be obvious launching pads for union campaigns, if the CFBPA is indeed able to attract large numbers of players at certain schools. 

Stahl says that most players, parents and associates of players that he speaks to have concrete concerns—chief among them, seeing to it that existing NCAA rules governing things like how many hours players can be asked to devote to “football activities” are actually enforced. He is not unaware of the obstacles. “There’s so much work to be done, with such a transient work force,” he says. 

But with the landmark NLRB memo coming just months after the June Supreme Court ruling that allows college athletes more avenues for compensation, 2021 is shaping up to be the year that the NCAA’s fantasy world of unpaid “student athletes” finally starts to crumble for good. The CFBPA is, quite literally, in the right place at the right time. Whether they are the seed that grows into a new branch of the labor movement remains to be seen.

About the Author: Hamilton Nolan is a labor reporter for In These Times. He has spent the past decade writing about labor and politics for Gawker, Splinter, The Guardian, and elsewhere. You can reach him at Hamilton@InTheseTimes.com.

This blog originally appeared at In These Times on October 5, 2021. Reprinted with permission.


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Jennifer Abruzzo, the NLRB’s General Counsel, Is Labor’s Best Legal Friend

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In an interview, Abruzzo discusses independent contractors, penalizing bad employers and what she might do to make good faith bargaining a reality in America.

Joe Biden has pledged to be the most pro-union president in recent memory. Whether that turns out to be true will depend in large part on the work of Jennifer Abruzzo. Since being confirmed as the National Labor Relations Board’s top lawyer two months ago, Abruzzo has wasted no time laying out a strong pro-worker agenda. A memo released in August outlining her priorities indicated her intent to revisit a number of policies in ways that could make them much friendlier to unions and to worker organizing. 

Among the most significant are the “Joy Silk” doctrine, which could require employers to demonstrate actual reasons for not voluntarily recognizing unions; Ex-Cello Corp, which could impose far more significant penalties on employers for bad faith bargaining; and other items touching on everything from independent contractor classification to the rules for employer handbooks.

Abruzzo, an NLRB veteran who last worked as a lawyer for the Communications Workers of America, is essentially the opposite of her predecessor, Peter Robb–a Trump appointee hostile to organized labor who was fired shortly after Biden took office. We interviewed Abruzzo via email about her priorities, keeping bad employers in line and the flaws inherent in American labor law. 

Your intent to revisit the Joy Silk doctrine has gotten a lot of attention. Can you explain your thinking behind that, and what you think the practical effects of a change in that policy might be for unions? You’ve said you also want to revisit Ex-Cello Corp, dealing with potential penalties for employers who refuse to bargain in good faith. Can you explain what you think might result from revisiting it? 

Jennifer Abruzzo: When Congress passed the National Labor Relations Act (NLRA), it said in Section One of the Act that it was the policy of the United States to “encourag[e] the practice and procedure of collective bargaining” and to do so “by protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection.” To effectuate this policy, there must be meaningful remedies when employers interfere with workers exercising their rights to organize and to bargain. 

Both the Joy Silk and Ex-Cell-O doctrines deal with remedies to employer interference in that initial, and often vulnerable moment, when workers first organize a union and request to bargain. Under the Joy Silk doctrine, from 1949 until about 1969, the Board would issue a bargaining order if an employer refused to bargain upon a request for recognition from a union that represents a majority of employees, if that refusal was in bad faith. 

The Ex-Cell-O case dealt with monetary remedies when an employer refused to bargain in good faith. In that case, the D.C. Circuit actually told the Board it had the power to order such a remedy and that such a remedy was necessary to effectively remedy the harm. So, I think that both doctrines have support in the Act’s purpose, history, and federal court precedent and are worth reexamining in order to more effectively fulfill the Act’s mission. 

There has been a long term trend of companies replacing full-time workers with “independent contractors.” What if anything do you anticipate doing during your tenure that might help give labor protections to independent contractors?

Abruzzo: Whether a worker is an employee or independent contractor is a question of law based on the actual employment relationship—it is not determined by an employer’s label or classification. In the Taft-Hartley amendments to the NLRA, Congress excluded independent contractors from the protections of the National Labor Relations Act. For this reason, whether a worker is an employee versus an independent contractor is crucial. If you are an employee, you have the full protections of the National Labor Relations Act in your workplace, such as the right to organize with your co-workers to improve health and safety, which is a critical right as the country is dealing with a pandemic. If you are an independent contractor, you have none of those legal protections. 

In 2019, in a case called Velox Express, the Board majority at that time rejected an argument that employer misclassification of an employee as an independent contractor was itself a violation of the Act. Chairman McFerran (then Member McFerran) wrote a dissent agreeing with the argument. She explained that when a worker is in fact an employee with NLRA rights but is being told by their employer that they are an independent contractor, it sends a clear message to the worker that, in the employer’s view, they have no rights under the Act. She further explained that this communication could unlawfully interfere with the exercise of an employee’s rights. 

In my first General Counsel Memorandum, I asked our Regional Offices to submit cases for my consideration as to whether and under what circumstances misclassification itself can violate the National Labor Relations Act, and as to the scope of the independent contractor exemption. With regard to the latter, I believe the statute should be broadly construed and the common law, which delineates a number of factors, provides a very good framework for determining employee status. In the SuperShuttle DFW case, the Board majority at the time put substantial emphasis on the significance of one factor—entrepreneurial opportunity—and that warrants further scrutiny. 

Under your existing power, what do you think the NLRB can do to create penalties for employers who violate labor law that are meaningful enough to reverse the current situation in which it makes good economic sense for employers to engage in illegal union busting tactics? 

Abruzzo: I will pursue the full breadth of possible remedies under the NLRA to deter violations and to protect and enforce the statutory rights of workers in this country. Full and effective remedies are so important to effectuating the NLRA. It is for that reason that one of my first priorities as General Counsel was to issue GC 21–06 on “Seeking Full Remedies” and GC 21–07 on “Full Remedies in Settlement Agreements,” memos in which I ask our Regional Offices to seek the full panoply of remedies available to ensure that victims of unlawful conduct are made whole for losses suffered as a result of unfair labor practices. 

Under the NLRA, the Agency cannot mete out fines or penalties to violators of our statute, but it does have the broad discretionary power to provide make-whole remedies to victims of those violators. A make-whole remedy is one that aims to restore the worker’s situation prior to being subject to the unlawful conduct. For example, if a worker was unlawfully fired, we ask what wages and benefits the worker lost as a result of the firing. But we also need to determine what other economic losses a worker suffered as a result of the unlawful firing. Did they lose their work visa, or their car because they were unable to keep up with their payments? Did they have to move to find another job? Did they need to obtain health insurance coverage or incur medical expenses due to the loss of coverage? Additionally, we must try to discern how the firing affected those in the worker’s workplace, in other words, the chilling effect it had on other workers’ ability to exercise their statutory rights, and how we can most fully remedy those detrimental effects. 

So, there is no question in my mind that we can and should do more pursuant to our Congressional mandate under the NLRA as it currently stands. 

What is your view on minority or “members only” unions, meaning unions representing less than 50 percent of a workplace? Some believe that employers should be obligated to at least bargain with the members of such a group, even if the entire workplace is not unionized. Is this an issue you anticipate addressing?

Abruzzo: What are sometimes called “members only” or “minority” unions have been present throughout U.S. history. These kinds of formations have often acted as precursors to exclusive majority representatives. The NLRA currently protects the rights of workers to act collectively and engage, through representatives if they so choose, with their employer to improve their working conditions. I encourage engagement between management and labor to ensure that workers’ voices are heard and workers’ concerns are elevated in order to reduce workplace conflict. 

As to requiring an employer to bargain or confer with a members only union on behalf of its members, this argument has previously been made by academics and practitioners through various submissions, cases, and a petition for rulemaking. If this issue is brought before me as General Counsel, I would carefully consider it as I do all matters brought to my attention. 

Is there any way for workers, unions, and America as a whole to break out of the sort of frantic pendulum of labor rules, as the NLRB swings back and forth between Democratic and Republican administrations? It feels like any gains workers make now will inevitably be rolled back by a future, more conservative board. How does the NLRB make progress that lasts? 

Abruzzo: My job as General Counsel of the NLRB is to fully effectuate the Act to the best of my ability, for as long as I have the honor to serve in this role. I am fortunate to have an excellent cadre of dedicated and talented board agents in the field offices and in headquarters to support my efforts to ensure that we are achieving our Congressional mandate to promote industrial stability and collective bargaining and to protect the rights of workers to act together to improve their wages and working conditions. 

It is worth noting that the vast majority of meritorious case resolutions occur without any Board intervention (through settlements), thus, the extent of “flip flopping” is minimized. Notably, it makes it that much more important to ensure that the Agency receives adequate budgets so that the Agency has the staffing and resources to educate employees, employers, labor organizations, and community advocates and members, about statutory rights and obligations, to deter violations, and to obtain full remedies during early enforcement to diminish workplace conflict and broader industrial strife. 

You’ve worked on the regulatory side of labor, and inside a union. When you think about the barriers to a true revival of union power—how much of that is regulatory, how much is legislative, and how much do you think are missteps of the labor movement itself?

Abruzzo: As an independent federal agency, the NLRB’s role is to vigorously effectuate the NLRA’s mission, which includes protecting workers’ rights to organize and collectively bargain. I have spent the vast majority of my career as a public servant at the NLRB enforcing the Act and so that is what I will speak to. As General Counsel, I can think of no better calling than to ensure that the rights of workers in this country are protected and that violations of these rights are swiftly and fully remedied. 

I enjoy good relationships with labor and management practitioners and worker and business advocates, and fully expect to continue to collaborate with them, as well as with Agency personnel, to ensure that we are doing our jobs as effectively and efficiently as possible. This includes having a robust outreach program, particularly reaching those in vulnerable and underserved populations. I certainly think that there needs to be a broader focus on these populations and on workers in general to ensure that more equitable workplace conditions and opportunities are afforded so that they and their families and their communities can not only survive but thrive, particularly during these challenging times. 

About the Author: Hamilton Nolan is a labor reporter for In These Times. He has spent the past decade writing about labor and politics for Gawker, Splinter, The Guardian, and elsewhere. You can reach him at Hamilton@InTheseTimes.com.

This blog originally appeared at In These Times on September 27, 2021. Reprinted with permission.


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NLRB Hearing Officer Recommends Rerun of Amazon Bessemer Election

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Luis Feliz Leon (@Lfelizleon) | Twitter

A National Labor Relations Board hearing officer has recommended a rerun of the union election that Alabama Amazon warehouse workers lost by more than 2 to 1 in April.

The hearing officer sided with the Retail, Wholesale and Department Store Union, which argued that Amazon had interfered with a fair election by pushing the Postal Service to install an unmarked mailbox as a ballot-drop site, within view of company surveillance cameras. The mammoth warehouse in Bessemer, Alabama, employs more than 5,000 workers.

In the hearing report, released today, NLRB field attorney Kerstin Meyers also agreed with RWDSU that Amazon had threatened employees, hired private police, and even changed the county traffic lights to impede the union’s access to voters.

“The question of whether or not to have a union is supposed to be the workers’ decision and not the employer’s,” said RWDSU President Stuart Appelbaum in a statement.

Meyers’ recommendation will most likely be upheld, but that decision rests with the Board’s regional director in Atlanta. This decision in turn could be appealed to the full board in Washington, D.C., explains labor lawyer Brandon Magner, but new Democratic appointments on the Board will tilt the balance in favor of a rerun election.

Magner concludes, “the union is probably getting a second election if it wants to wait for one”—meaning if the union doesn’t pull the petition and give up.

A do-over will likely stretch into next year. Given Amazon’s more than 150 percent turnover rate, it will likely involve an almost entirely new workforce.

Shortly after the April election defeat, Labor Notes spoke to Amazon worker Darryl Richardson, who described how Amazon had bolted him down in place, making it hard to organize on the job even after he emerged as a workplace leader.

“At Amazon, we were designated to a station,” Richardson said, comparing restrictions on mobility within the warehouse to his previous job at a unionized auto parts plant. “We couldn’t roam. We was tied down.” This made it difficult to talk to co-workers, he said. The pandemic-related social distancing measures only exacerbated these limitations.

Richardson’s freedom to roam was even more severely curtailed when he was assigned to exclusively pick items out of bins, whereas before he had toggled between roles. Previously he had worked in such roles as “water spider,” which, in Amazon lingo, is someone who goes into the trailers with pallet jacks, pulls pallets of packages, and stages them to be unloaded onto the conveyors.

“Receivers, packers, and sorters are the least mobile. They typically stand in one place and do the same tasks over and over again,” said a member of the collective Amazonians United, who asked to remain anonymous and has held numerous roles at Amazon facilities. Amazonians United is a network of rank-and-file worker committees stretching across the U.S. and Canada.

These roles are randomly assigned, so the company can’t be charged with retaliation, workers say. Meyers, the Board’s hearing officer, rejected claims by pro-union workers in Alabama that the company had isolated them, corroborating what workers told Labor Notes about being routinely reassigned. “Employees are regularly moved to areas where they are needed,” wrote Meyers in the 61-page recommendation.

But it’s an expression of the arbitrary and dictatorial power that Amazon exercises over its workers. Sometimes, according to Amazon workers, even when they bring doctor’s notes certifying that they have plantar fasciitis or stress fractures and need relief from the repetitive motions of picking, the company doesn’t accommodate these requests; it might just move someone to pick another floor.

While the Board has found that Amazon pressured its workers in Alabama to vote against joining RWDSU, many of the company’s practices—including captive-audience meetings where workers were forced to listen to management’s anti-union rants—were within the purview of the law. One exception was the anti-union “vote no” pins—featuring Amazon’s warehouse mascot, Peccy—and “vote no” tags for workers to hang from their cars’ rearview mirrors.

Meyers called the anti-union onslaught “propaganda.” The company festooned common areas with banners declaring “speak for yourself” and “vote no.” It also sent emails saying “Don’t Give Up Your Voice.”

Even if the Atlanta regional Board director calls for a rerun of the election, Amazon’s control over the workplace must be overcome in the worker’s courtroom: the shop floor.

“I thought the outcome was going to be totally different. In the facility, every day, everybody was complaining. Ain’t nobody got anything good to say. I’m just still overwhelmed about how the outcome came out,” Richardson told Labor Notes in April. “Due to Amazon’s anti-union tactics, they was confused, didn’t know what was going on. [Amazon] put pressure on ’em.

“They didn’t want to lose their jobs,” he said. “They didn’t want [Amazon] to take away their wages and benefits. They didn’t want [Amazon] to relocate.”

And now? “1 more round, I’m ready,” Richardson said on Twitter yesterday.

This post originally appeared at LaborNotes on August 3, 2021. Reprinted with permission.

About the author: Luis Feliz Leon is a staff writer and organizer with Labor Notes.


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Amazon is intentionally burning through warehouse workers, but it may not be sustainable forever

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Interview with Laura Clawson, Daily Kos Contributing Editor | Smart  Bitches, Trashy Books

Amazon defeated a union organizing drive in Alabama recently, but two major new articles on the company’s warehouses powerfully show why workers wanted to unionize—and why it’s going to be nearly impossible for such efforts to succeed.

The New York Times led off with a damning look at JFK8, an Amazon fulfillment center in New York City. The JFK8 story was a window into Amazon’s broader employment practices, though, starting with high turnover by design, because Amazon founder Jeff Bezos wants people gone quickly, calling long-term employment a “a march to mediocrity.” In the warehouses, that translates to Amazon not caring that it is churning through workers at a staggering rate, seeing turnover of 150% a year even before the coronavirus pandemic. Other analyses of Amazon’s turnover rate have put it somewhat lower, but still at least 100%.

Hourly warehouse employees also have few chances for advancement—again by design, a former human resources vice president for the company told the Times. The internal promotion rate for these workers is less than half that of Walmart, with Amazon preferring to hire “wicked smart” college graduates in management roles. And—surprise!—at JFK8 that and other policies translated to an hourly workforce that was 60% Black or Latino, while management was more than 70% white or Asian. Black workers were also almost 50% more likely to be fired than white workers.

Amazon really is treating people as disposable, bringing them in and burning them out. Partly that seems to come from Bezos’ contempt for workers. But HuffPost’s Dave Jamieson also highlights how this helps insulate Amazon from worker organizing efforts

High turnover is “definitely one way to avoid a union,” former JFK8 worker Chris Smalls, now launching an independent organizing effort at the facility, told Jamieson. That plays out in the development of solidarity between workers, the trust workers feel in each other that enable them to talk freely about things management wouldn’t want them talking about, the long-term investment workers feel in improving the workplace … and, very concretely, in the mechanics of getting a union representation election.

To get the National Labor Relations Board to set up an election, organizers have to have signed union cards for 30% of workers, but in reality, organizers need far more than that because some initial support may disappear in the face of an anti-union campaign by management.

“At an Amazon warehouse, high turnover means a union would be losing cards every day as workers leave and new employees unfamiliar with the campaign replace them,” Jamieson writes. “Even if the union manages to win an election, high turnover could hurt its position at the bargaining table if some of the most active organizers have quit or been fired. And churn could even help the employer purge the union from the facility by convincing newer workers to decertify it.”

Bezos is stepping down as Amazon’s chief executive soon, and on his way out he has made sounds about improving Amazon’s employment practices, vowing the company would become “Earth’s best employer.” That is … unlikely. But, the Times pointed out, Amazon’s turnover is so extreme that “multiple current and former Amazon executives fear there simply will not be enough workers. In the more remote towns where Amazon based its early U.S. operations, it burned through local labor pools and needed to bus people in.” Reforming its employment practices enough that the company can keep a workforce in place for the long run may be a necessity at some point. And that, in the most optimistic scenario, could also be an opening for organizers.

This blog originally appeared at DailyKos on June 4, 2021 Reprinted with permission.

About the author: Laura Clawson has been a Daily Kos contributing editor since December 2006 and a full-time staff since 2011, currently acting as assistant managing editor


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Amazon defeats Alabama union effort after dirty, but predictable, campaign

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The union organizing effort at an Amazon warehouse in Bessemer, Alabama, appears headed for defeat after the first day of counting ballots. There were 3,215 votes, with the count standing at 1,100 against unionizing to 463 in favor. Voting ended March 29, but before the counting began, hundreds of ballots were challenged, most by the company. If those could be decisive, they will be revisited.

But on the day counting began, we learned more about how far Amazon went to stack the deck in its favor. The National Labor Relations Board had refused Amazon’s request to have a ballot drop box in the facility, citing coronavirus social distancing precautions. But documents obtained by the Retail, Wholesale, and Department Store Union through Freedom of Information Act requests show that Amazon defied that by going to the U.S. Postal Service and asking for a mailbox to be installed on Amazon property—which it was, unmarked, the day before voting started.

One critique of the campaign and the decision to press forward to an election after Amazon successfully expanded the bargaining unit involved in the vote from around 1500 workers to all 5800 in the warehouse: 

“We have not heard anything back on the install of this collection box,” a Postal Service account manager emailed Postal Service workers in Alabama on Jan. 14. “Amazon is reaching out again to me today about the status as they wanted to move quickly on this.” 

Those emails directly contradict a Postal Service spokesman’s claim that the mailbox was “suggested by the Postal Service as a solution to provide an efficient and secure delivery and collection point.”

”Even though the NLRB definitively denied Amazon’s request for a drop box on the warehouse property, Amazon felt it was above the law and worked with the postal service anyway to install one,” RWDSU President Stuart Appelbaum said in a statement. “They did this because it provided a clear ability to intimidate workers.” 

When the mailbox was installed, journalist Kim Kelly and More Perfect Union showed exactly why it functioned to intimidate workers:

Assuming the vote counting continues as it has begun, this will become the basis for a challenge by the union. It was, of course, only one of a string of intimidation strategies and efforts to rig the vote in Amazon’s favor—most of which were allowed under current U.S. labor law. So much of what’s happened in Bessemer is a case study in why we need the Protecting the Right to Organize Act, but also in why big business is so determined to keep U.S. labor law weak and tilted in favor of management.

This blog originally appeared at Daily Kos on April 9, 2021. Reprinted with permission.

About the Author: Laura Clawson has been a contributing editor since December 2006. Clawson has been full-time staff since 2011, and is currently assistant managing editor at the Daily Kos.


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Citing Unfair Labor Practices, 1,300 Steelworkers Strike in Five States

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At 7:00 AM on Tuesday, March 30, 1,300Steelworkers employed by Allegheny Technologies Incorporated (ATI) walked out in protest at facilities in Pennsylvania, Ohio, New York, Massachusetts, and Connecticut. The strike comes just over a year after United Steelworkers began negotiations with ATI. According to a statement released that day, the union is dissatisfied with company demands for ?“major economic and contract language concessions.”

United Steelworkers further claims that ATI has committed unfair labor practices. A charge filed with the National Labor Relations Board on March 9 alleges that the company is refusing to furnish the union with essential bargaining information. As USW International Vice President David McCall tells it, this withholding finally pushed the workers to strike.

“We are willing to meet with management all day, every day. But ATI needs to engage with us to resolve the outstanding issues,” McCall says. ?“We will continue to bargain in good faith, and we strongly urge ATI to start doing the same.

Healthcare is among the biggest points of contention in the negotiations. While the company maintains that their proposals continue a ?“premium-free plan,” a union bargaining update contends that out-of-pocket costs are up. Workers are also balking at a company plan to assign coverage to workers hired after 2024, which they say will give new employees inferior, more expensive coverage and thus introduce a ?“two-tiered system.”

Plant closures have been another topic of heated debate. Andy Artman, President of USW 1138?–?6 and an electrician at ATI’s Latrobe facility, says he had to relocate after ATI’s Bagdad plant in Gilpin, PA, shuttered in 2016. And he has company. Michael Barchesky, who has worked in electrical maintenance at the Latrobe facility since 2007, claims he knows people who have had to move two or three times because of facility closures. With the company pushing for more?—?including the Waterbury facility in Connecticut, the Louisville facility in Ohio, and a production line in Brackenridge?—?the union is fighting to ensure that workers forced into retirement will keep the pensions they’ve earned.

For rank-and-file workers like Joe Clark, an overhead crane operator at the Brackenridge facility, a work stoppage is his chance to draw a line in the sand after years of compromise.

“When we were first contracted to put this [hot rolling mill] in [at Brackenridge], they asked us for concessions because they wanted to create jobs that were going to be for us and for our families in the future,” says Clark. ?“It was supposed to guarantee more jobs for the community, so we sacrificed.”

The company spent $1.5 billion to expand and update the Brackenridge facility, aided by a controversial economic development strategy known as ?“Keystone Opportunity Zones.” The long-term tax abatements awarded to these zones were supposed to create jobs, but a 2015 piece written by then-President of the USW, Leo Gerard, argues they have never materially benefitted local residents. Bill Hrivnak, who Gerard quotes in the piece, says that “[Everyone] thought when they built a $1 billion plant here that it would be great for the community, and it hasn’t been.”

“They cut two thirds of the same department we work in now,” he continues. ?“The [new] jobs never appeared, the technology cut [existing] jobs, and we continued to work without raises, sacrificing. They’re always telling us the company is in a difficult position, and they’re not making money. But they’re paying out millions of dollars to their CEOs and their upper-level people.”

Workers are skeptical about the company’s claimed hardship. ?“You look at what we’re getting compensated and what the CEOs are getting compensated, it doesn’t really add up,” says Barchevsky.

Although it expects to rebound in 2021, recent filings with the Securities and Exchange Commission reveal ATI has lost money each of the last three quarters. The same report finds that the company has ?“reduced company-wide employment levels by approximately 1,400 people, or about 17% of our total workforce.”

Many of those layoffs have been union jobs. Before a 2015 labor dispute that led to a lockout, workers say there were approximately 2,200 bargaining unit employees. Now there are just 1300, with management proposing to close more plants and make further cuts. 

Artman puts things bluntly: ?“They’re trying to break the union.” Clark agrees, describing management as a ?“tyranny of evil men.” For its part, ATI released a statement on social media saying that it was ?“disappointed USW elected to strike.”

Fortunately for the USW, the Brackenridge community is on its side. 

“Everyone’s still supportive,” says Barchesky. ?“They still wave, they still come and talk to us. Nobody wants to go on strike. We didn’t get compensated for the last seven months we were locked out, but we can’t lay down and take another beating… we can’t let them just keep gutting us.”

This blog originally appeared atIn These Times on April 1, 2021. Reprinted with permission.

About the Author: C.M. Lewis is an editor of Strikewave and a union activist in Pennsylvania. 


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How Joe Biden Is Empowering America’s Workers

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Time and again over the past few years, as he fought to protect his coworkers at Bobcat’s North Dakota plant, William Wilkinson faced two obstacles.

One was the company. The other was a federal government that, instead of fulfilling its duty to safeguard workers, helped management exploit them.

Within hours of taking office on January 20, however, President Joe Biden began to level the playing field and harness the strength of working people to tackle the huge challenges confronting the country.

Biden understands that only with a healthy, empowered workforce can America end the COVID-19 pandemic and rebuild the economy.

So in one of his first official acts, Biden fired Peter Robb, the union-busting corporate lawyer who wormed his way into the general counsel’s job at the National Labor Relations Board (NLRB) and then used his power to turn the agency against the people it was created to protect.

Robb, who directed agency field offices and set policy, thwarted organizing drives and advocated stripping workers of long-standing union protections. He determined that employers had no obligation to bargain with unions seeking COVID-19 protections and even sided with employers who fired workers for voicing coronavirus safety concerns.

“Board charges used to scare the company. Now, they mean nothing,” said Wilkinson, president of United Steelworkers (USW) Local 560, who sensed Robb’s anti-worker animus rigging the scales in numerous cases that he filed on behalf of his members.

“No matter what, your case is dead before you get there,” Wilkinson said, recalling one dispute in which the NLRB refused to make Bobcat turn over financial data the union needed to assess a health insurance hike. “It’s Bizarro World. They have no interest in wrongdoing or whatever problem brought you there.”

Righting the NLRB will involve not only selecting a new, capable general counsel but, in a change from the former administration, installing board members committed to upholding labor law.

Biden’s housecleaning will ensure the agency returns to its mission of protecting labor rights, such as ensuring that the growing number of Americans who want to join unions—including employees of AmazonGoogle and transportation services—can do so without harassment or retaliation.

A properly functioning NLRB will reset the scales and once again bar corporations from changing working conditions in the middle of a contract.

It will roll back recent, unfair rulings making it easier for corporations to oust unions, discipline workers without recourse to their union representatives and misclassify employees as contractors with fewer labor rights. In classifying SuperShuttle drivers as contractors, for example, the board denied many exploited workers the chance to form a union and build better lives.

An overhauled NLRB will have to reassure workers that they’ll get a fair hearing when they bring contract violations and other offenses to the board.

“We just want to be equal,” Wilkinson said. “I’m not asking for special treatment.”

When the coronavirus struck, Wilkinson and many other workers across the country had to fight their employers to implement commonsense safety measures like social distancing and sanitizer stations.

Some refused, exposing their communities to needless risks and fueling the virus’s spread. All the while, the previous administration callously refused to ramp up workplace protections or hold corporations accountable.

But in an executive order declaring worker health and safety to be a “national priority,” Biden quickly unshackled the agencies charged with protecting Americans on the job.

The order requires the Occupational Safety and Health Administration (OSHA)—an agency that Wilkinson described as having “gone completely corporate” like the NLRB in recent years—to update COVID-19 safety guidelines for workplaces.

Biden also directed OSHA, whose leadership allowed investigations to lag and inspector positions to go vacant before the pandemic, to scrutinize its enforcement program and train resources on COVID-19 hotspots.

And under Biden’s order, both OSHA and the Mine Safety and Health Administration must quickly study the need for emergency, temporary infectious disease standards that would require employers to take certain steps to keep workers safe on the job.

The USW and other unions demanded these standards for nearly a year, realizing that many employers will act responsibly only when regulators hold their feet to the fire. Workers need these protections more than ever as America’s COVID-19 death toll eclipses 440,000, new variants of the virus begin hitting the nation and Biden accelerates the vaccine rollout that his predecessor botched.

To accomplish all of this vital work as quickly as possible, it’s essential to have battle-tested experts at the helm.

That’s why Biden tapped James S. Frederick, formerly the assistant director and principal investigator for the USW’s Health, Safety and Environment Department, to serve as one of the top leaders at OSHA.

During his 25 years on the front lines of occupational safety, Frederick doggedly pursued answers to workplace tragedies and advocated for some of the most important safety regulations that OSHA is responsible for enforcing today.

But it isn’t just technical knowledge that prepared Frederick for his new role. His empathy for injured workers and bereft families will give a fresh urgency to OSHA’s work.

“What a super win to get a Steelworker in there,” said Wilkinson, who praised the USW’s health and safety programs. “He’ll do a good job for working people. He’ll do it right.”

Working people took so many hits the past four years that Wilkinson felt the country’s foundation crumbling.

But with Biden in their corner, he believes workers will have the support they need to steer through the pandemic and build a stronger America.

“What he’s done so far is totally a morale changer,” Wilkinson said. “If Biden holds to his promises, I see the middle class growing, along with unions. That’s more jobs and higher wages for all working people.”

This article was produced by the Independent Media Institute.

About the Author: Tom Conway is the international president of the United Steelworkers Union (USW).


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