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DECEMBER 13, 2022

Meyerson on TAP

Biden's Agencies Rule: One for the Workers, One Not

The NLRB goes after employer lawbreaking, while the FTC-just this
once?-disregards workers' concerns.

In a much-anticipated ruling released today, the National Labor
Relations Board significantly increased employers' liability when they
violate the National Labor Relations Act by illegally firing workers, as
very often happens to workers involved in unionization campaigns.

In a 3-to-2 ruling (Democratic-appointed members voted yes;
Republican-appointed members, no), the Board ruled that when it finds
that this violation has occurred, the miscreant employers should be on
the hook for the damages they've inflicted on their discharged
employees. Up to now, employers have only been required to give their
fired workers the pay they would have earned during the time they've
been unemployed, minus any wages that workers have earned on other jobs
they'd taken since their firing. That made it temptingly inexpensive
for employers to fire a worker involved in an organizing campaign rather
than see their workers go union and have to pay them higher wages.

Today's ruling recognizes that the sudden loss of a job may deprive
fired workers of more than their paychecks. As the statement
<[link removed]>
from the Board declared,

in addition to the loss of earnings and benefits, victims of unfair
labor practices may incur significant financial costs, such as
out-of-pocket medical expenses, credit card debt, or other costs that
are a direct or foreseeable result of the unfair labor practices. The
Board determined that compensation for those losses should be part of
the standard, make-whole remedy for labor law violations.

Today's ruling was sought by the Board's general counsel, Jennifer
Abruzzo, who has consistently endeavored to restore to the NLRA the
pro-worker particulars it originally contained. Those particulars have
largely been eroded by decades of ferocious employer opposition to
worker rights, which has carried enough political clout to seep into
court rulings and Republican policies, and to deter just enough
Democrats from seriously coming to the workers' defense. As is evident
from his appointment of Abruzzo (whom I profiled
<[link removed]> earlier this
year) and his support for organizing campaigns, President Biden-his
intervention on the rail strike notwithstanding-is the most pro-labor
president we've had.

We Can't Do This Without You
<[link removed]>

Biden's progressive appointments extend across the landscape of
regulatory agencies, not least at the Federal Trade Commission, where
Commission chair Lina Khan is resurrecting the long-dead imperative of
restoring fair competition to our monopolized and monopsonized economy
by taking our antitrust laws seriously. The long-ago authors of our
antitrust laws sought to break up the great monopolies and trusts, as
they were then called, for fear that they would not only stifle business
competition and drive smaller firms out of business, but also exercise
undue political power. In recent years, critics like Khan and Columbia
University's Tim Wu (temporarily advising Biden in such matters) have
demonstrated how these corporate giants also damage communities by
wiping out Main Street businesses and harm workers by limiting the
number of other firms in the field that might offer better pay and
working conditions. This new perspective on antitrust supersedes the
shrunken-down one followed by the courts and regulators during the past
40 years. That shriveled perspective, based on the writings of
right-wing legal polemicist Robert Bork, contended that all mergers were
legal so long as they didn't raise the prices consumers paid. By which
metric, antitrust became a dead letter from the advent of Reagan to the
coming of Biden.

Unions have been fans of this new doctrine for taking workers'
interests seriously for the first time in the checkered history of
antitrust doctrine. But a major ruling from Khan's FTC last week,
which blocked Microsoft's purchase of Activision, drew impassioned
opposition from one of the nation's few truly stellar unions, the
Communications Workers of America. During the past 40 years, even as
most unions abandoned the strike weapon after Reagan busted PATCO, the
CWA has continued to wage and win major strikes and has had a string of
organizing successes, including those at media outlets through its
Newspaper Guild affiliate.

The CWA was also looking forward to major organizing successes at
Activision once the Microsoft purchase went through, not only due to its
own organizing chops, but due to a man-bites-dog development at
Microsoft (which I wrote about
<[link removed]>
in June): its announcement that it not only wouldn't oppose the
union's organizing campaign at Activision but not even require an
election once CWA had gotten a majority of Activision employees to sign
union affiliation cards. That policy-really, the only such one coming
from a major American corporation in memory, and one that could have
portended a shift in labor relations from the nation's increasingly
dominant tech corporations upon realizing that their millennial and Gen
Z employees really like and want unions-that policy, as I said, became
collateral damage when the FTC turned down the merger.

As CWA acknowledged in its statement
<[link removed]>,
mergers often lead to layoffs and increased domination of our politics
by mega-corporations, which is why it supports the revival of antitrust,
particularly in its new form, as it takes those factors into
consideration. But in this case, Microsoft's new policy made its
proposed acquisition a positive good for Activision employees. To be
sure, the FTC's ruling positively impacted many millions of Activision
game players and, even more important, laid down a marker that may limit
power-hungry corporations from growing even more powerful. But if any of
those corporations were mulling over the possibility that letting their
employees actually exercise their rights might cause the government (at
least, a Democratic government) to look upon them more favorably, that
thought has now died aborning.

So the tally on the past week with Biden's appointed regulators: One
for the workers, one not so much.

~ HAROLD MEYERSON

Follow Harold Meyerson on Twitter <[link removed]>

[link removed]

[link removed]
KeyBank Promised to Increase Low-Income Lending, Then Did the Opposite
<[link removed]>

The National Community Reinvestment Coalition charges that the bank
failed to follow through on written commitments that helped get a merger
approved. BY DAVID DAYEN

The Two Percent Obsession
<[link removed]>
In the face of mounting evidence that inflation is easing, the Fed
clings to a perverse monetary policy. What will its meeting this week
produce? BY ROBERT KUTTNER

Tense Runoff Election Pits Old Austin Versus New
<[link removed]>
The housing crisis and the climate crisis have shaped mayoral and city
council elections in Texas's fast-growing capital city. BY JACK
CRAVER

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