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Employers are increasingly relying on the US Constitution to provide a legal framework that can undermine the work of the National Labor Relations Board, notching early victories in their challenge to the agency.
The National Labor Relations Board is an independent federal agency tasked with safeguarding employee rights to organize and to determine whether to have unions as their bargaining representative. The agency also acts to prevent and remedy unfair labor practices in the private sector.
The NLRB faces constitutional arguments in cases that include in-house unfair labor practice proceedings, district court lawsuits, appellate review of board and lower court rulings, and a bid to get a court to force a company to bargain with a union.
NLRB General Counsel Jennifer Abruzzo said earlier in the year that large corporations are only challenging the agency’s constitutionality to divert its scarce resources away from enforcing labor law against them.
Which companies have pushed back against the NLRB?
Elon Musk’s SpaceX and Energy Transfer LP have won orders from Trump-appointed judges in Texas temporarily stopping the NLRB from moving forward with administrative cases against them based on constitutional claims.
The injunctions were based on claims against removal protections, which are backed by favorable precedent from the Supreme Court and the US Court of Appeals for the Fifth Circuit.
It has largely resulted in case delays so far, but it could see judges invalidating otherwise sound NLRB rulings, legal observers say.
Other arguments strike deeper, threatening the only means to police violations of the National Labor Relations Act.
Some companies have more frequently raised constitutional arguments within administrative proceedings rather than filing separate lawsuits in court, including Starbucks, Amazon, and Trader Joe’s.
Amazon pushed back against a complaint issued by the National Labor Relations Board (NLRB) when two Georgia workers alleged that they faced retaliation, surveillance, and interrogation after exercising their right to organize.
The workers, based at a warehouse on the outskirts of Atlanta, filed charges in 2023. The NLRB’s regional office then issued a complaint against Amazon, and a court hearing is scheduled for October.
Taking away American workers' rights
The courtroom drama is playing out against a backdrop of a US Supreme Court that is pushing to reduce the power of federal regulators, opening many regulations to legal challenge.
One legal expert stated: “The Supreme Court has signaled it wants to bring down the administrative state, and now employers are making arguments that would have seemed unthinkable a decade ago.”
“This is the staging ground for corporate America to take away workers’ rights,” warned Seth Goldstein, a union attorney with Goldstein and Singla.
