Will the Supreme Court Kill the National Labor Relations Board?

[Elderberry]

Washington Monthly by Ruben J. Garcia April 29, 2024

As Starbucks—and Elon Musk’s SpaceX—take aim at the New Deal-era body, the Roberts Court could severely curtail the right of workers to organize. Here’s how.

he recent lawsuit brought by Elon Musk’s SpaceX challenging the constitutionality of the National Labor Relations Board (NLRB) might seem to have little to do with Starbucks. The Seattle-based coffee giant has publicly distanced itself from SpaceX’s frontal assault on the nearly 90-year-old labor law regulator. (See Elon Musk’s War on the New Deal—and Democracy by Caroline Fredrickson, the Georgetown Law Center professor, in the Washington Monthly.)

However, when Starbucks argued before the Supreme Court last week, the two companies seemed to be aiming at a common adversary. The SpaceX case uses constitutional theories of due process and the appointment of members of the NLRB to try to avoid legal repercussions for its attempt to stymie unionization.

Last week, by contrast, Starbucks was before the Roberts Court challenging the NLRB’s use of its statutory authority to remedy what the panel deems to be ongoing unfair labor practices at the 53-year-old beverage giant. The federal agency fulfills this function by using a typical tool in a lawyer’s toolbox—the status quo (or preliminary) injunction. Under Section 10(j) of the 1935 National Labor Relations Act, the NLRB can ask a federal court to temporarily block employers from engaging in unfair and illegal labor practices (such as firing workers organizing unions) until the dispute can be settled. The arguments in Starbucks Corp. v. McKinney, the company’s challenge to an injunction reinstating the self-named “Memphis 7,” while an NLRB administrative judge decides whether it violated federal labor law by retaliating against the employees for their union organizing drive. Over the past four years, Starbucks, with a market capitalization hovering around $100 billion, has swatted back various attempts to bargain with its some 381,000 employees, although a framework to start bargaining may be in the works in exchange for settling pending unfair labor practices such as this one.

Meanwhile, the SpaceX suit has been trying to find a home in the friendly confines of the Fifth U.S. Circuit Court of Appeals, arguably the most conservative circuit in the country, instead of in California, home of the Ninth U.S. Circuit Court of Appeals. Much to SpaceX and Musk’s probable chagrin, it looks like the case may land in the Ninth Circuit, believed by many conservatives as the equivalent of a workers’ paradise, where the NLRB would surely win, at least until the U.S. Supreme Court gets involved.

More: https://washingtonmonthly.com/2024/04/29/will-the-supreme-court-kill-the-national-labor-relations-board/

[Elderberry]

Amazon, SpaceX and other companies are arguing the government agency that has protected labor rights since 1935 is actually unconstitutional

ACS by Kate Andrias

Amazon, SpaceX, Starbucks and Trader Joe’s have all responded to allegations that they have violated labor laws with the same bold argument. The National Labor Relations Board, they assert in several ongoing legal proceedings, is unconstitutional.

SpaceX, for example, says that the NLRB is engaging in “an unlawful attempt … to subject Space X to an administrative proceeding whose structure violates Article II, the Fifth Amendment, and the Seventh Amendment of the Constitution of the United States.”

If these companies prevail, the entire process for holding union elections and for prosecuting employers who break labor laws – in place since the days of the New Deal – could collapse. That would leave U.S. workers more vulnerable to exploitation.

The Supreme Court upheld the constitutionality of the board nearly a century ago, soon after President Franklin D. Roosevelt signed the law that created the NLRB and made clear that workers have the right to organize and bargain collectively. Justices have also rejected similar arguments in cases involving other agencies.

As a law professor who researches labor law and constitutional law and a former labor organizer, I am deeply concerned, but not surprised, by these attacks on the federal agency that has protected U.S. workers’ right to organize unions and bargain collectively with their employers since the 1930s.

These corporations seem to believe they will find a sympathetic audience before the conservative justices that occupy six of the Supreme Court’s nine seats. In a series of prior cases, the conservative justices have already weakened administrative agencies and cut back on workers’ rights.
Growing support for unions

The corporate attack on the NLRB also seems to be a response to growing support for unions among Americans.

Workers at the companies that are challenging the NLRB’s constitutionality have all begun to organize unions in recent years, with numerous, high-profile, union-organizing wins. Workers across numerous sectors, including auto, education, health care and Hollywood, have recently held successful strikes.

What’s more, the NLRB has been more assertive in prosecuting employers for violating workers’ rights, and it has been revising rules in ways that make it easier for workers to organize.

More: https://www.acslaw.org/expertforum/amazon-spacex-and-other-companies-are-arguing-the-government-agency-that-has-protected-labor-rights-since-1935-is-actually-unconstitutional/

[Wingnut]

Will the Supreme Court Kill the National Labor Relations Board?

I hope so.

Just another worthless government commission.