Progressive news outlet Common Dreams wrote:
Amid a recent surge in unionization and other workers’ rights victories, wealthy U.S. corporations have fired union organizers, surveilled employees as they voted on forming a collective bargaining unit, and closed store locations to penalize labor leaders—but a court filing by Amazon on Thursday suggested a new tactic as the e-commerce giant seeks to dismantle the federal agency tasked with protecting employees.
Here’s how Fortune described the filing by Amazon’s lawyers:
In its filing, Amazon denies many of the charges and asks for the complaint to be dismissed. The company’s attorneys then go further, arguing that the structure of the agency — particularly limits on the removal of administrative law judges and five board members appointed by the president — violates the separation of powers and infringes on executive powers stipulated in the Constitution.
The attorneys also argue that NLRB proceedings deny the company a trial by a jury and violate its due-process rights under the Fifth Amendment.
Common Dreams reporter Julia Conley notes that there have been more than 250 NLRB complaints against Amazon—whose owner Jeff Bezos is currently the world’s third-richest person—in recent years.
In January, similar claims that the NLRB was unconstitutional were made by the SpaceX astronautics company, owned by Elon Musk, the second-richest person in the world, and the Trader Joe’s grocery chain.
SpaceX filed a federal lawsuit in the Southern District of Texas after the NLRB issued a complaint that the company had unlawfully fired eight workers in retaliation for publishing an open letter in 2022 protesting “inappropriate, disparaging, sexually charged comments on Twitter” by Musk. SpaceX has appealed a lower court ruling that moved the case from Texas to California, where the company’s headquarters is located.
It’s not surprising that Musk would be going after the NLRB at a time when the United Auto Workers, fresh off a major victory in a strike against the Big Three automakers, has announced plans to organize workers at the multibillionaire’s Tesla plants in the U.S.
The Hill wrote:
The SpaceX suit describes that (NLRB) complaint as “unlawful,” claiming the NLRB’s structure violates Article 2 of the Constitution and the Fifth and Seventh amendments. The company argues that because only board members and administrative judges can be removed by the president, not all employees, the agency’s structure is unconstitutional.
[…]The company also demanded a trial by jury and seeks to dismiss the complaint.
As for Trader Joe’s, NLRB prosecutors accused the company of engaging in multiple illegal union-busting tactics. At a January NLRB hearing, a lawyer for the grocery chain echoed the claims made by SpaceX against the labor board.
“The structure and organization of the National Labor Relations Board and the agency’s administrative law judges is unconstitutional,” the grocery chain’s attorney Christopher Murphy said, according to Bloomberg News, which obtained a transcript of the proceeding.
The judge said he’s “not going to be ruling on my own constitutionality anytime soon,” advising the company to take the matter up with the board members themselves and the federal courts, according to HuffPost.
Seth Goldstein, an attorney for Trader Joe’s United, the union that’s accused the grocery chain of illegal retaliation, told HuffPost he finds it disturbing that the idea of dismantling the NLRB has been “mainstreamed.” He said the argument would align Trader Joe’s with right-wing ideologues.
“I see something really insidious here,” said Goldstein. “Is Trader Joe’s onboard with what their law firm is doing?”
Wilma Liebman, the NLRB chair under President Barack Obama, told The New York Times that the arguments by Amazon and SpaceX are “radical,” adding that “the constitutionality of the NLRB was settled nearly 90 years ago by the Supreme Court.”
The NLRB was established under the Wagner Act that was signed into law by President Franklin D. Roosevelt in 1935. The Supreme Court upheld the NLRB’s constitutionality in 1937.
There was certainly no reason for corporations to challenge the constitutionality of the NLRB during President Donald Trump’s administration. According to the Economic Policy Institute, a liberal think tank, the Republican-controlled NLRB “systematically rolled back workers’ rights to form unions and engage in collective bargaining with their employers, to the detriment of workers, their communities, and the economy.”
But last year saw a surge in labor union activity, with nearly 350 strikes called by unions—the most in two decades—including walkouts by Hollywood actors and writers, as well as autoworkers.
The American Prospect wrote that President Joe Biden’s NLRB brought “workers’ rights back from the dead” with key decisions that effectively made “union organizing possible again.”
And as Cornell Law School professor Robert Hockett wrote In a post on X, formerly known as Twitter: “So now capital, unable to hold back labor any longer, is arguing that the NLRB’s very existence is unconstitutional.” Former New York Times labor reporter Steven Greenhouse noted on X that two of the world’s richest men were fighting the NLRB “all to weaken American workers’ ability to bargain for a fairer deal from these billionaires.”
Unfortunately, the conservative-dominated Supreme Court has shown a willingness to take cases brought by conservative activists targeting federal regulatory agencies.
The high court’s 2022 West Virginia v. Environmental Protection Agency represented a setback to the EPA’s ability to control carbon pollution. And in October, the court heard arguments in a case brought by a trade association representing payday lenders that claims that the funding structure for the Consumer Financial Protection Bureau is unconstitutional.
During oral arguments on two linked cases last month, the Supreme Court’s conservative majority seemed inclined to limit or even overturn the so-called “Chevron deference” under which judges must defer to federal agencies’ reasonable interpretations of ambiguous legislation. Overturning this 40-year-old precedent could threaten many regulations spanning not just labor, but also the environment, healthcare, and consumer safety—and more.
And in January, the Supreme Court agreed to hear a case brought by Starbucks challenging a federal judge’s order to reinstate seven union activists who were fired at a store in Memphis.
The New York Times wrote:
The labor board has issued dozens of complaints against the company based on hundreds of accusations of labor law violations, including threats and retaliation against workers who are seeking to unionize and a failure to bargain in good faith.
And what did Starbucks do on Friday? Their attorneys joined SpaceX, Amazon, and Trader Joe’s in arguing that the NLRB is unconstitutional.
Starbucks Workers United responded with its best organizing day ever, according to NPR, who reported Tuesday that “employees at another 21 Starbucks stores have petitioned for union elections, the most in a single day since the start of the Starbucks unionizing campaign.”
A more detailed legal analysis of the constitutional challenge attacks on the NLRB can be found on the pro-union OnLabor blog, founded by professors at Harvard Law School.
