At second glance, however, Roberts, in seeking to specify which kinds of agency courts were kosher and which weren’t, seemed to give the NLRB an out. He cited the Court’s 1937 ruling in Jones & Laughlin Steel—the decision that upheld the newly enacted National Labor Relations Act—as making clear that the kinds of rulings delivered by the NLRB’s administrative bodies were exempt from his decision. The NLRB’s rulings deal with the "unfair labor practices" specified in the NLRA, which are not themselves the subject of other laws that would come before the courts. Roberts may have concluded that the Court’s standing with the public was already so dismal that a decision that effectively
defanged unions—whose standing with the public is at a 50-year high—wasn’t a particularly politic move. The current NLRB general counsel, Jennifer Abruzzo, has been working to speed up the Board’s remedies for the particular unfair labor practice that employers customarily use to deter their workers’ unionization campaigns: illegally firing the most pro-union workers. The NLRA’s remediation, should the employer be found guilty, requires the rehiring of the fired worker(s)—which, if done promptly, could keep the union drive going, perhaps even boosting its prospects. Should
those cases be shifted to the courts, however, the time elapsed before a decision could come down would surely be so long that the unionization campaign would likely have long since ceased to exist—thereby effectively blocking workers’ right to collective bargaining. But Roberts’s apparent NLRB exemption in his decision may not be the Court’s final word. The Court still has one more case to rule on in this session that could weaken all regulatory agencies (and enlarge the powers of the Court). The lawsuit brought by Elon Musk’s and Jeff Bezos’s companies challenges the NLRA
on somewhat different grounds, that of the Board wearing too many hats (the affront to their own sovereignty and the disdain with which the world’s richest men view their workers’ attempt to gain some modicum of workplace power and security are surely the de facto cause, but not the de jure). And nothing in the history of this Court, and particularly Alito’s ability to push it to extremes in weakening the rights of women and workers, should inspire any confidence that it won’t be coming for the NLRB in future sessions. So did American workers dodge a bullet today? They may well
have, but others are still flying around.
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