The Wolves Who Cried “Unconstitutional”: The Issue of The National Labor

June 2024 | Floyd Velasquez (Associate Editor)

Introduction

Within the last three years, a new wave of organizing for workers’ rights has crashed against corporate doors, with many workers exercising their right to come together and collectively improve their workplace. At Amazon, warehouse workers in Staten Island, New Jersey voted to unionize for the first time two years ago. [1] Earlier this year, more than 400 Starbucks employees voted to form a union. [2] On a more recent note, workers for a Mercedes-Benz plant in Alabama filed to join the United Auto Workers union within the first week of April 2024, marking the union’s expansion to the South. [3] All of these companies’ workers have exercised their rights to collectively organize and bargain – a right bestowed to them under the National Labor Relations Act of 1935. [4] Aside from ensuring these rights be available to workers across the United States, the National Labor Relations Act of 1935 also established the National Labor Relations Board (NLRB) – a government agency designed specifically to enforce employees’ rights and adjudicate their disputes. [5] However, a death sentence may be imposed on almost 90 years of the NLRB’s authority and commitment to workers’ rights as Amazon, SpaceX, and Trader Joe’s have recently come together to raise their swords against the federal agency’s constitutionality. [6]

The National Labor Relations Board and its Father Document

In response to the continued grievances and outbursts of violence that workers faced in the early 1930s, President Franklin D. Roosevelt signed the National Labor Relations Act (NLRA) into law on July 5th, 1935. [7] Within this bill, its author, Senator Robert Wagner, enshrined the pivotal right to strike and unionize, guaranteeing the “right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining.” [8] In addition, the Act included provisions regarding union elections, bargaining units, and unfair labor practices and their procedure of investigation. [9] Featured as an enforcement mechanism to uphold workers’ rights protected by the NLRA, the Act established the National Labor Relations Board, an independent federal agency whose power lies in defending employees’ rights to organize and seek better working conditions, ensuring the democracy of union elections, and perhaps its most vital role – investigating the violations of unfair labor practices. [10]

The NLRB consists of many arms that serve specific functions to facilitate the investigation and prosecution of unfair labor practices. The NLRB’s 26 regional offices across the country, led by regional directors, investigate and prosecute alleged violations, and are supervised by the general counsel – an individual independent from the Board who is appointed by the President to serve a four-year term. [11] In instances where the issue is not resolved at a regional level, the case is then presented before an NLRB administrative law judge, whose purpose is to hear the case and issue initial decisions, which are subject to review by the full NLRB Board – a quasi-judicial body whose deciding authority is on equal footing with the general counsel. [12] In full, the Board consists of five members appointed by the President and confirmed by the Senate, each serving five-year terms, with the term of one member expiring each year. [13] Should an issue be appealed to the Board, a panel of three members will decide on the case. [14] However, in cases that present novel ideas or hold the potential to overturn precedent, the full Board will meet to hear and decide those cases. [15]

While the NLRB holds an considerable influence when it comes to their decision-making power, the federal agency is just that – a federal agency – in which its purpose is vested in the responsibility to uphold the NLRA, an Act passed by Congress – the institution in which they receive their funding from to fulfill this very duty. It is under this premise that the NLRB’s legitimacy is in question. Can a government agency acting as an extension of Congress, who has the ability to provide legal remedy, do so outside the judicial system laid out by the Constitution?

SpaceX, Trader Joe’s, and Amazon 

The efforts to deprive the NLRB of its power, spearheaded by SpaceX, Trader Joe’s, and Amazon, come after these companies have collectively been charged with hundreds of violations of workers’ rights. Firing pro-union employees, various forms of retaliation against organizing, and bargaining in bad faith are just some of the claims that these companies have amassed. [16] Amazon alone currently has over 400 open or settled cases against their company for unfair labor practices and other violations of workers’ rights. [17] Trader Joe’s, while standing at a smaller scale of 150 open or settled cases against them, has also been charged with unfair labor practices, as well as failing to bargain in good faith. [18] Interestingly, SpaceX’s claims do not originate in violating the right to unionize, but rather the right to “protected concerted activity” in which workers may come together to address issues within the workplace. [19] In an open letter, eight employees raised concerns about the SpaceX workplace, which included complaints regarding social media comments made by Elon Musk – and all eight employees were fired in response. [20]

SpaceX, Trader Joe’s, and Amazon are attacking the NLRB’s constitutionality on multiple fronts. In a recent lawsuit filed on April 19th, 2024 in a federal District Court in Texas, SpaceX alleges that the NLRB’s organizational structure violates Article II of the Constitution. [21] Specifically, SpaceX claims that the NLRB’s administrative law judges – who are “inferior officers” with “substantial authority” – are over-protected from removal, interfering with the President’s right within Article II to oversee and remove subordinate officers who assist the President with ensuring that laws be “faithfully executed.” [22] SpaceX’s complaint claims that they are dually “insulated,” for administrative law judges can only be removed for-cause by officials who themselves are only removable for-cause – leaving no other avenue for a judge’s removal. [23] Essentially, the judges can only be removed for “bad behavior” by the authority above them, who also can only be removed by the same process, and not more accessible mechanisms, such as impeachment. Following in SpaceX’s footsteps, Trader Joe’s echoed the same exact argument during a hearing with administrative law judges. [24] Amazon has become the most recent challenger to the constitutionality of the NLRB, whose legal complaint filed on February 15, 2024, repeated the aforementioned argument and presented additional arguments. Within its filing, Amazon claims that the removal process of administrative law judges, as well as the Board, violate the separation of powers detailed in the Constitution, citing the same violation of Article II of the Constitution as their preceding refuters. [25] Additionally, Amazon argues that the proceedings that the NLRB held denied the company their rights guaranteed under the Fifth Amendment to a jury trial and due process; they argue that NLRB Board members exercise powers of the legislative, executive, and judicial branch simultaneously within their proceedings. [26]

Corporate Personhood

Amazon’s claim (a recycled argument from SpaceX and Trader Joe’s) within their lawsuit against the NLRB that their company has been deprived of the right to due process is cut from a controversial cloth – the legal concept of corporate personhood. While the rights guaranteed under the Bill of Rights are protective of infringements on the rights of American citizens, the notion of “corporate personhood” allows those guarantees to be afforded to corporations as well. [27] The notion of corporate personhood originates in the decision from Santa Clara County v. Southern Pacific Rail Road (1886). [28] While the decision in this case is rather dry – concerning taxes to railroad companies – its importance is tied to housing corporations’ rights under the 14th Amendment to due process and equal protection under the law. Chief Justice Morrison Waite states, “The Court does not wish to hear argument on the question [of] whether the provision in the Fourteenth Amendment to the Constitution which forbids a state to deny any person within its jurisdiction the equal protection of the laws applies to these corporations. We are all of the opinion that it does.” [29]

Corporate personhood received legal expansions later down the line, where the case of Citizens United v Federal Election Commision (2010) resulted in a decision that protected corporations’ political spending as free speech under the First Amendment, and again in Burwell v. Hobby Lobby Stores (2014), where the Supreme Court held that companies are allowed to deny contraceptive health coverage on religious objections of the company’s owners. [30]

Amazon’s implication of corporate personhood – and therefore SpaceX’s and Trader Joe’s – is a notable example of the power in which corporations presently wield, which the strategy to weaken the NLRB’s decision-making power would significantly fuel.

NLRB: A Piece of a Bigger Puzzle

SpaceX, Trader Joe’s, and Amazon’s attempt to topple the constitutionality of the NLRB is not a new legal strategy; similar tactics were used when employers made efforts to defy the constitutionality of the National Labor Relations Act after its passage in 1935. [31] However, these companies’ arguments raised against the NLRB are a part of a more concerning whole.

Aside from reverberating the same claims reflected in complaints filed by SpaceX and Trader Joe’s, Amazon argues that its cases filed against them should be dismissed, as they invoke the new “Major Questions” doctrine. [32] The “Major Questions” doctrine, a legal principle expressly used for the first time in West Virginia v. EPA (2022), prohibits federal agencies from deciding on questions of “vast economic and political significance” without authorization from Congress. [33] Through invoking this doctrine, Amazon proclaims that the NLRB’s administrative rulemaking authority, within its proceedings on retaliation against unionized workers, are deciding on issues that are outside of their jurisdiction – as it is a subject matter that holds a significance too crucial for them to decide.

 If SpaceX, Amazon, and Trader Joe’s arguments against the NLRB are accepted by the courts, it leaves a potential for future NLRB decisions to be challenged by those similarly-aggrieved to Amazon under the “Major Questions” doctrine, dampening the authority of the NLRB. Additionally, it creates an example for other companies to follow in pursuit of subverting other government agencies, and a substantial precedent for companies to doubt the validity of other agencies’ decisions, or question the legitimacy of their respective administrative judges. 

However, the most devastating consequence would lie in the loss of an avenue for workers’ rights. Should the courts rule in agreement that the NLRB lacks constitutional authority, its deciding body would be rendered obsolete – removing the sole safeguard for the right to unionize, and eroding a mechanism for justice in the workplace that has been in place for almost 90 years. Should the efforts put forth by SpaceX, Amazon, and Trader Joe’s leave the NLRB powerless, not only would the growing labor rights movement be stymied, but the decision would communicate a clear message on where companies stand – in protection only of themselves.

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Sources

1. Rhinehart, Lynn, and Celine McNicholas. “What’s behind the Corporate Effort to Kneecap the National Labor Relations Board?: Spacex, Amazon, Trader Joe’s, and Starbucks Are Trying to Have the NLRB Declared Unconstitutional-after Collectively Being Charged with Hundreds of Violations of Workers’ Organizing Rights.” Economic Policy Institute.

2. Ibid

3. “Mercedes Workers at an Alabama Plant Call for Union Representation Vote.” AP News,

4. “1935 Passage of the Wagner Act.” National Labor Relations Board.

5. Ibid.

6. Rhinehart, Lynn, and Celine McNicholas. “What’s behind the Corporate Effort to Kneecap the National Labor Relations Board?: Spacex, Amazon, Trader Joe’s, and Starbucks Are Trying to Have the NLRB Declared Unconstitutional-after Collectively Being Charged with Hundreds of Violations of Workers’ Organizing Rights.”

7.  “National Labor Relations Act (1935).” National Archives and Records Administration.

8. “National Labor Relations Act.” National Labor Relations Board.

9. Ibid.

10. Ibid.

11.  “Introduction to the NLRB.” National Labor Relations Board.

12. “Decide Cases.” National Labor Relations Board.

13. Ibid.

14. Ibid.

15. Ibid.

16. Rhinehart, Lynn, and Celine McNicholas. “What’s behind the Corporate Effort to Kneecap the National Labor Relations Board?: Spacex, Amazon, Trader Joe’s, and Starbucks Are Trying to Have the NLRB Declared Unconstitutional-after Collectively Being Charged with Hundreds of Violations of Workers’ Organizing Rights.”

17.  “Case Search | National Labor Relations Board.” National Labor Relations Board.

18. Ibid.

19. Rhinehart, Lynn, and Celine McNicholas. “What’s behind the Corporate Effort to Kneecap the National Labor Relations Board?: Spacex, Amazon, Trader Joe’s, and Starbucks Are Trying to Have the NLRB Declared Unconstitutional-after Collectively Being Charged with Hundreds of Violations of Workers’ Organizing Rights.”

20. Scheiber, Noam. “SpaceX Illegally Fired Workers Critical of Musk, Federal Agency Says.” The New York Times.

21. Space Explotation technologies Copr v. NLRB, et al.

22. Ibid.

23. Ibid.

24. Roscoe, Jules. “U.S. Corporations Are Openly Trying to Destroy Core Public Institutions. We Should All Be Worried.” VICE.

25. Roscoe, Jules. “Amazon Joins Elon Musk’s Spacex in Mission to Destroy Federal Agency Protecting Workers.” VICE.

26. Ibid.

27. Pruitt, Sarah. “How the 14th Amendment Made Corporations Into ‘People.’” History.com.

28. Ibid.

29. Ibid.

30. Ibid.

31. Fry, John. “Understanding the Latest Constitutional Attacks on the NLRB .” OnLabor,

32.  Roscoe, Jules. “Amazon Joins Elon Musk’s Spacex in Mission to Destroy Federal Agency Protecting Workers.” VICE.

33.  Joyce, Samuel Buckberry Buckberry. “Testing the Major Questions Doctrine.” Stanford Law School.