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MAJOR US CORPORATIONS THREATEN TO RETURN LABOR TO ‘LAW OF THE
JUNGLE’  
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Steven Greenhouse
March 10, 2024
The Guardian
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_ Trader Joe’s and SpaceX are among businesses challenging the
constitutionality of the National Labor Relations Board _

View image in fullscreen Trader Joe’s employees rally in lower
Manhattan in support of forming a union on 18 April 2023., Photograph:
Spencer Platt/Getty Images

 

Upset by the surge in union drives, several of the best-known
corporations in the US are seeking to cripple the country’s top
labor watchdog, the National Labor Relations Board (NLRB), by having
it declared unconstitutional. Some labor experts warn that if those
efforts succeed, US labor relations might return to “the law of the
jungle”.

In recent weeks, Elon Musk’s SpaceX as well as Amazon, Starbucks and
Trader Joe’s have filed legal papers that advance novel arguments
aimed at hobbling and perhaps shutting down the NLRB – the federal
agency that enforces labor rights and oversees unionization efforts.
Those companies are eager to thwart the NLRB after it accused Amazon,
Starbucks and Trader Joe’s of breaking the law in battling against
unionization and accused SpaceX of illegally firing
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workers for criticizing Musk.

Roger King, a longtime management-side lawyer who is senior labor
counsel for the HR Policy Association, said “it will be a
lose-lose” if the federal courts overturn the 89-year-old National
Labor Relations Act, which has governed labor relations since Franklin
Roosevelt was president. “We’ll have the law of the jungle, the
law of the streets,” King said. “It will be who has the most
power. It’s potential for chaos.”

Kate Andrias, a Columbia University law professor, said workers would
be hurt if the courts issue a sweeping decision that declares both the
NLRB and the National Labor Relations Act unconstitutional. “Without
them, workers will be even worse off,” she said. “It’s critical
that they continue to exist to protect the basic right to organize and
engage in collective bargaining. This is an assault on rights we have
considered fundamental since the New Deal.”

Some worker advocates have voiced surprise that these companies are
seeking to hobble the NLRB when, in their view, the labor board is
already too weak, its penalties toothless. The NLRB can’t fine
companies even one dollar for breaking the law – for instance, by
illegally firing workers for supporting a union.

SpaceX, Starbucks [[link removed]],
Amazon and Trader Joe’s have put forward three main arguments for
holding the NLRB unconstitutional: it penalizes companies without a
jury trial, exercises executive powers without the president being
free to remove board officials, and violates the separation of powers
by exercising executive, legislative and judicial functions. This
corporate attack is part of a wave of lawsuits challenging the
constitutionality of various federal agencies that regulate business.

Andrias said one factor spurring the challenges to the NLRB is that
“the supreme court over the last decade, but especially in the last
couple of years, has signaled a hostility to the administrative state
and has radically remade administrative law in a way that would curb
the government’s ability to protect workers and consumers. Companies
are now trying to capitalize on the court’s conservative
majority.”

[People rally in support of Amazon and Starbucks workers in New York
City on 26 November 2021.]

People rally in support of Amazon and Starbucks workers in New York
City on 26 November 2021. Photograph: Yuki Iwamura/AFP/Getty Images

Another reason for these anti-NLRB efforts is that many companies
believe that President Biden’s NLRB has swung too far to the left.
The board is usually pro-business under Republican presidents and
pro-labor under Democratic ones. King said that SpaceX
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hope the courts will provide a “firewall” against the NLRB’s
leftward shift.

William B Gould IV, who was chair of the NLRB under President Clinton,
said anti-union “tech billionaires” like Musk and Jeff Bezos
“have fueled these efforts”. “Elon Musk says he doesn’t like
unions because they create a lords-versus-peasants mentality
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Gould said. “It certainly seems that Musk is trying to hold down the
peasants here.”

Benjamin Sachs, a labor law professor at Harvard, said it’s
troubling that Trader Joe’s and Starbucks, which hold themselves out
as progressive, “are willing to sign on to legal theories that
threaten not only labor rights, but our ability to have clean air,
regulate food safety and assure safe and healthy workplaces”.

SpaceX led the way in challenging the NLRB, calling it
an “unconstitutionally structured agency”
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In a lawsuit filed in Texas, SpaceX asserted: “The NLRB’s current
way of functioning is miles away from the traditional understanding of
the separation of powers.” SpaceX quoted James Madison in The
Federalist Papers: “The accumulation of all powers legislative,
executive and judiciary in the same hands” is “the very definition
of tyranny”. (SpaceX and the NLRB are fighting over whether a
federal judge in Texas or California
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hear the case.)

The NLRB declined the Guardian’s request for comment. It has yet to
file a legal response defending its constitutionality.

Andrias defended the NLRB, noting that ever since the New Deal, the
supreme court has allowed federal agencies to exercise various
functions. “What we’re seeing is part of a broad attack on
Congress being able to design agencies in the way it deems most
effective,” she said.

The corporations maintain that the NLRB’s administrative law judges
should be deemed unconstitutional because, they argue, those judges
exercise many executive functions and the president can’t readily
remove them. The NLRB’s defenders say the judges exercise judicial,
not executive, powers. The board’s defenders further argue that the
cases NLRB judges hear don’t require a jury trial because the judges
can’t assess any financial penalties, except back pay to workers who
were illegally fired or demoted.

SpaceX and the other corporations might someday appeal these cases to
the supreme court. Legal experts say it’s hard to predict whether
the courts will uphold the NLRB’s constitutionality, rule that parts
of its structure are unconstitutional, or wholly void the NLRB and
National Labor Relations Act.

The HR Policy Association’s King said that if NLRB judges are
declared unconstitutional, that would essentially halt those judges
hearing hundreds of cases each year in which board officials first
accused companies and unions of violating labor laws. The NLRB has,
for instance, filed 128 complaints against Starbucks, alleging more
than 1,000 instances of illegality, including that the company
unlawfully fired dozens of baristas for backing unionization.
(Starbucks denies any wrongdoing.) Under this scenario, King said, the
NLRB could still oversee unionization elections.

Steven Swirsky, a management-side employment lawyer with Epstein
Becker Green, said, “It would be pretty problematic for employers
and unions if there isn’t some structure in place to administer the
functions now done by the NLRB.” He said that federal judges won’t
want to handle all the cases now litigated before the NLRB. If the
labor board is ruled unconstitutional, workers who feel they were
illegally fired or otherwise disciplined for backing a union might
file a flood of lawsuits in federal courts.

Harvard’s Sachs said that in seeking to have the NLRB ruled
unconstitutional, “corporations should be careful what they wish
for”. “If you eliminate the National Labor Relations Act, then
you’ll have 50 states empowered to enact their own labor laws,” he
said. The result: California and other blue states might enact laws
that make it far easier to unionize than current federal law does.

Legal scholars said if the NLRB is ruled unconstitutional in whole or
in part, that might require congressional action to fix it, but with
Congress so dysfunctional, that might be hard to do.

“For most workers and unions, the NLRB is the only game in town,”
said Gould, the board’s former chairman. “Most employers won’t
recognize and bargain with unions without the NLRB requiring them
to.”

_Steven Greenhouse is a journalist and author, focusing on labor and
the workplace_

* union organizing
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* anti-union campaigns
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* NLRB
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