Picture of Amazon warehouse workers from Staten Island

Lawsuits Challenging NLRB’s Existence Appear to Have One Goal: Eviscerate Workers’ Rights

By Robert Fulton | contributing writer

Anti-union forces are at it again, trying to dismantle basic worker protections by going after the institutional bodies and long-held precedents that govern labor standards in the United States. This time around, the roster of bad guys comprises some of today’s wealthiest and most notoriously anti-union corporate agitators, including SpaceX, Amazon, and Starbucks. Trader Joe’s is also in the mix, as well as — surprisingly — the American Civil Liberties Union (ACLU).

The core argument Amazon and SpaceX are attempting to put forth in their legal papers is that the National Labor Relations Act (NLRA), the subsequent National Labor Relations Board (NLRB), and other long-established governing principles regarding U.S. labor are simply unconstitutional. Such arguments intend to undermine and weaken the NLRB and thus put the screws to organized labor.

“There are several (arguments),” said Catherine Fisk, a labor law professor at the UC Berkeley School of Law. “I don’t believe any have merit.”

The anti-labor arsenal of tomfoolery is a grab bag of assertions of unconstitutionality.

In response to an NLRB allegation that Amazon unlawfully retaliated against New York City warehouse workers who voted to unionize, the Prime peddler has argued that limits on removing NLRB board members appointed by the U.S. president violate the separation of powers.

The legal gripes about the NLRB also include its use of administrative law judges and a supposed violation of the 7th Amendment. SpaceX and Trader Joe’s have made similar claims in their suits.

Fisk explained that the use of administrative law judges is not unique to the NLRB and exists in most government agencies.

SpaceX got in hot water with the NLRB after firing eight employees who wrote a letter addressing workplace concerns. One of the astronautics company’s claims is that the NLRA violates the 7th Amendment of the Constitution, which stipulates that citizens have a right to a jury trial in civil cases with a claim exceeding $20. SpaceX filed the case in Texas, home to the Fifth Circuit Court of Appeals, considered by many to be the most conservative court of its type. The case has been moved to California, where SpaceX is headquartered, but that, too, is being challenged.

An additional argument made against the NLRB is that in overseeing the entire agency, it unfairly holds the responsibility to both prosecute violations and to rule on those same cases.

“All of these are intended to grind the National Labor Relations Board’s enforcement of the [NLRA] to a halt,” Fisk said.

One related case currently before the U.S. Supreme Court that Fisk said she’ll be watching is the Securities and Exchange Commission v. Jarkesy; it features some similar claims. But she’s not entirely convinced that case and any challenges to the NLRB would be an apples-to-apples comparison.

“I think there’s a good argument that whatever the court does in Jarkesy won’t immediately affect the National Labor Relations Act,” Fisk said.

Somewhat shockingly, the ACLU — the legal advocacy organization known for its focus on human rights — is challenging an administrative law judge’s decision regarding claims that the ACLU retaliated against an employee. The organization is arguing in favor of forced arbitration.

Perhaps most exaspirating — and concerning — is that we’ve been here before. The Supreme Court already dismissed challenges to the NLRA more than 80 years ago when it upheld the law’s constitutionality.

In the 1930s, the high court even reversed its non-delegation doctrine, which had prevented Congress from delegating its lawmaking powers to other entities such as the NLRB. But as the current Supreme Court has demonstrated, precedent doesn’t carry as much weight as it once did, to say the least.

“Conservatives in the last several years have argued that courts should revise the non-delegation doctrine because they see it as a way to get rid of regulation that they don’t like,” Fisk said. “So, I think because there are six justices who seem open to radical reinterpretations of the Constitution in a kind of anti-regulatory way, time will tell how the court goes.

“What everybody is pondering is how much appetite the six conservative members of the U.S. Supreme Court have for holding unconstitutional statutes that have been on the books for almost 90 years,” Fisk said.

Watch this space for more reporting as these cases play out.


Special thanks to reader Ingrid Dayton for sending in the news tip that resulted in this article. If you have a news tip or article idea, please email Organized Labor Editor-in-Chief Alex Weber at This email address is being protected from spambots. You need JavaScript enabled to view it..

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