Elon Musk, Trader Joe’s & Other Union Busters Seek to Dismantle Enforcement of Labor Laws

Even as unions enjoy record popularity, union busting companies are turning to the courts to stop the momentum. In recent years, a Democratic majority on the National Relations Board has made several pro-labor rulings that have benefitted workers. That's why union busters are putting legal challenges in front of Trump-appointed anti-labor judges in an effort to eliminate the board all together.
 

“[The NLRB has] tried to move the line aggressively, and I do think you're going to see increasingly hostile federal judges,” Ed Egee, vice president for government relations at the National Retail Federation and a former NLRB staffer told Politico this week.

Billionaire businessman Elon Musk’s company SpaceX and the grocery chain Trader Joe’s are challenging the constitutionality of the National Relations Board before federal courts that are controlled by former President Trump-appointed anti-labor judges. On Jan. 4, SpaceX’s attorneys with the notorious union busting firm Morgan Lewis filed a challenge to an NLRB ruling that found it improperly fired nine employees among other labor violations in 2022.

The company claims that the NLRB’s structure is unconstitutional  because its members can only be removed for cause, not at will, and that the board violates due process protections. Trader Joe’s, which markets itself as a progressive company, has filed a similar appeal to charges that it engaged in illegal union-busting by retaliating against pro-union employees.

Catherine Fisk, an employment and labor law expert at UC Berkeley law school, told the Los Angeles Times that these companies are unable to challenge the actual labor laws the NLRB enforces because they’ve been upheld in numerous Supreme Court decisions going back to the 1930s. That's why their current strategy is to argue that the whole administrative structure is unconstitutional.

“This is an effort by a group of lawyers who are foes of the administrative state and the New Deal-era legislation that created the NLRB and the SEC to essentially end enforcement of those statutes,” said Fisk.

This piece by labor reporter Alex Press has a more in-depth analysis of the court cases.

The conservative-dominated Supreme Court, also announced earlier this year that it plans to take up a challenge by the Starbucks Corporation that could have a detrimental impacton the NLRB’s power to enforce labor laws. The court agreed to hear the coffee chain's appeal of a ruling ordering the company to rehire seven workers at a Tennessee, store who lost their jobs in the middle of Starbucks United’s nationwide union drive. While the company rehired the workers, legal experts say that the upcoming decision could make it much more difficult to make similar rulings to hold union busting corporations accountable.

“It’s going to require the board to work harder in certain cases and may make it more difficult for them long term to achieve this extraordinary relief,” Roger King, senior counsel at the business-backed HR Policy Association, told the Associated Press.

However, Maine labor attorney Ben Grant says he is doubtful that even the current Supreme Court would do away with a hundred years of jurisprudence by ruling the NLRB unconstitutional. More likely he says, it will repeal the Chevron Doctrine, which states that courts must defer to an administrative agency’s “reasonable” interpretation of an ambiguous provision in a statute Congress charged the agency with implementing.

Repealing the Chevron Doctrine could be very harmful to the labor movement if  the Supreme Court sidelines the expertise of Biden's pro-labor NLRB by broadening its own authority to shape labor policies.

As we enter another election season, it’s important to share these stories with your coworkers so they do their research before voting and support candidates who will appoint pro-worker judges.