When evaluating the job performance of government officials, I like to apply one of the few sports analogies I understand and consider their “wins above replacement,” a sabermetric term that refers to a baseball player’s record relative to that of the average player with whom their team could replace them. Given who the president is at any particular time, for instance, there may be only so much one can reasonably expect of those selected for certain federal posts; if the bar is low enough, just having key positions filled by those who are not either ludicrously corrupt or actively working against the public interest might be cause for celebration. But when expectations are high, even competent bureaucrats may seem like a disappointment if they fail to truly shine.
With that in mind, one of the star recruits of the Biden administration has been a woman whose name is probably unknown to most Americans, and who rarely, if ever, makes the evening news. Jennifer Abruzzo has served since July 2021 as the general counsel of the National Labor Relations Board (NLRB), the independent agency that administers federal statutes around collective bargaining and unfair labor practices. In her role as the nation’s chief enforcer of labor law, Abruzzo has displayed remarkable creativity in how she has used the power of her office to help ordinary people secure more power in their own places of work.
The NLRB’s general counsel under Donald Trump, Peter Robb, had been on a more or less explicit mission to kneecap the agency, and so virtually anyone that Biden could have selected would have been an improvement. But considering that many of the president’s appointees—especially to agencies charged with overseeing public health, immigration, or foreign affairs—have ended up pursuing policies not very different from those of their predecessors, Abruzzo’s tenacious efforts to advance a pro-worker agenda have been especially impressive. One of her most significant accomplishments to date came this summer, when the Board issued a ruling that some observers have hailed as its most consequential in decades.
The United States has seen a resurgence of union activity in recent years, with major strikes rocking industries from auto manufacturing to health care to TV and film production in the past few months alone. Yet despite the renewed attention paid to organized labor, the fraction of workers who belong to a union remains at or near its historic nadir: according to the U.S. government’s Current Population Survey, as of 2022, just 6 percent of private-sector workers are union members—down from around 25 percent half a century ago, and the lowest figure on record. At the same time, polling has shown that a much larger share of nonunion workers say they would join a union if they could, and that this number has only been growing over time. This naturally raises the question: Why aren’t they?
Part of the explanation has to do with the fact that starting a union in your workplace is not easy, and often becomes even more difficult once your boss catches wind of what you’re up to. Although employers are legally prohibited from interfering with workers’ right to join a union—by, say, threatening to fire them if they do—the penalties for such interference are, in practice, very weak. As MIT economist Anna Stansbury has argued, it should come as no surprise that this sort of illegal behavior is pervasive when there are so rarely any meaningful consequences.
Thanks to Abruzzo and her fellow Biden appointees at the NLRB, however, that might be changing in a big way. In a decision known as Cemex Construction Materials Pacific, LLC, handed down in late August, the Board made a major revision to the rules around how private-sector unions are formed. Typically, unions come into being in one of two ways. With voluntary recognition, a majority of employees in a particular workplace announce their desire to unionize by presenting signed “authorization cards” to their employer, who then willingly agrees to begin contract negotiations. With a certification election, a secret-ballot vote is overseen by officials from the NLRB, usually at the request of would-be union members whose employer has declined to recognize them voluntarily.