What You Need to Know About the Legal Quest to Destroy America's Labor Protections
"There should be a significant concern that the employer may prevail."
Last week I wrote here about the inherent political radicalism of capital, as embodied by the current legal crusade by companies including Amazon, Starbucks, Trader Joe’s, and SpaceX to overturn the basis of post-New Deal labor rights in America. In addition to their normal union-busting, these companies are seeking to have the entire operation of the National Labor Relations Board deemed unconstitutional.
This is the sort of potentially apocalyptic legal issue that must be understood to be appreciated (and properly feared). For more on this, I turned to a man who is deeply engaged in this fight on the side of unions: Seth Goldstein, a labor attorney at the firm Julien, Mirer, Goldstein and Singla, who serves as general counsel for both the Amazon Labor Union and Trader Joe’s United. Our conversation is below.
First of all, what exactly is the legal argument that Amazon, Starbucks, Trader Joe's et al are making in regards to the constitutionality of the NLRB and/ or the National Labor Relations Act?
Seth Goldstein: In January 2024, SpaceX, represented by the law firm Morgan Lewis, filed a lawsuit against the National Labor Relations Board (NLRB) in federal court in South Texas. The basis of their argument is that the NLRB and the National Labor Relations Act violate the separation of powers clause of the Constitution and are therefore unconstitutional. In the past few week Trader Joe’s, Starbucks, and Amazon have raised this argument as an affirmative defenses in their Answers at Unfair Labor Practice Administrative Law Trials in Hartford Connecticut and Brooklyn New York. SpaceX, Trader Joe’s, Amazon, and Starbucks presents three main arguments. First, they claim that the NLRB's members and administrative law judges have protection from removal by the president, which they argue is impermissibly shielded from Presidential removal and therefore unconstitutional. Second, they argue that NLRB proceedings violate the Seventh Amendment right to a trial by jury. And third, they contend that the NLRB's combination of executive, judicial, and legislative functions is a violation of the separation of powers doctrine. Amazon asserts that their claim extends beyond constitutional issues by invoking the major-questions doctrine and associated principles of non-delegation. According to this doctrine, Congress must speak clearly on matters of significant economic or political importance before allowing agencies to make decisions. Recently, the Fifth Circuit recently used it to overturn a National Labor Relations Board ruling regarding union T-shirts.
If these companies were to prevail, how would the process of enforcing labor law change? What would it mean for the average worker or union who sees an employer break the law and wants to get legal relief?
Goldstein: If Space X, Trader Joe’s, or Amazon were to prevail, the operations of the National Labor Relations Board (NLRB) would come to a halt. This would result in employees being stripped of their rights and union organizing being severely hindered. Administrative Law Judges would be unable to issue rulings and the Board would be blocked from making decisions. As a result, employers could potentially rush to federal court to obtain injunctions against ongoing board trials, preventing board members from issuing decisions. This would also impede the Board's ability to enforce 10(j) injunctions in federal court. Furthermore, employers may seek restitution from employees who have previously received NLRB awards, as the agency's adjudication powers would be deemed unconstitutional.
Such a scenario would not only harm collective bargaining for first contracts and legacy contracts, but it would also give employers the upper hand in negotiations. With the NLRB's effectiveness in question, employers may take a tougher stance on arbitration and "just cause" agreements, knowing that they would no longer have to worry about the Board's intervention. This would ultimately damage the bargaining power of workers and undermine the purpose of the NLRB.
When companies argue that the cases that the NLRB's judges currently hear should instead be heard in federal court, what is the upside for employers? Is it simply that federal court moves more slowly? Is federal court naturally more hostile to workers? Or something else?
Goldstein: One issue is the lack of any statutory authority in the NLRA that permits for companies to present their cases in federal court instead before ALJs. This means that the board's complaint would not be properly adjudicated or enforced. Oddly, organized labor has urged Congress to grant the right of private action in federal court, a privilege already granted under the Fair Labor Standards Act but never passed into law. Additionally, federal courts may not possess the same level of expertise as NLRB administrative law judges in handling unfair labor violations. Unfortunately, in certain states, workers may not receive fair treatment in federal courts that lack sympathy for their struggles.
As someone who works in this area of law, how do you assess the chances that these companies will be successful in their arguments? What is the timeline for the Supreme Court ruling definitively on this stuff?
Goldstein: There should be a significant concern that the employer may prevail in these particular cases. Companies such as Space X, Trader Joe's, and Amazon are actively relying on the Fifth Circuit and Supreme Court, which are known for their skepticism towards the administrative state, to potentially overturn the Chevron doctrine. This would result in a decrease in the court's deference towards agency decisions, and could potentially lead to a ruling that deems the NLRA and NLRB enforcement powers as unconstitutional. The SpaceX case may progress at a quicker pace if the Fifth Circuit chooses not to transfer the venue to the California Central District Court. In such a scenario, the South Texas Federal District Court would be responsible for ruling on Space X's preliminary injunction, and then the case would then proceed to make its way through the Fifth Circuit potentially reaching the Supreme Court in the near future.
Trying to tear down some of the pillars of post-New Deal American law seems to be an extremely radical tactic, far beyond the typical tactics of union-busting companies. What do you think prompted the companies in question to decide to wage this legal battle now?
Goldstein: It is not a mere coincidence that companies like Amazon, Starbucks, and Trader Joe's are implementing a certain tactic in response to recent union organizing efforts. These companies have have failed to prevent unions from forming, despite National Labor Relations Board (NLRB) elections, and they are dissatisfied with the Board's enforcement of the National Labor Relations Act (NLRA) since the Taft-Hartley Act was passed in 1947. As a result, they are now attempting to weaken worker protections and undermine the American labor movement. This is not a legal constitutional issue, but rather a strategic move by employers to use Lochner-style arguments to empower courts to act as a "super legislature" and strike down post-New Deal legislation. Their ultimate goal is to not only challenge the NLRA, but also important federal laws such as the Fair Labor Standards Act (FLSA), Occupational Safety and Health Act (OSHA), and Environmental Protection Agency (EPA) regulations.
To what extent do anti-union law firms like Morgan Lewis bear responsibility for these legal attacks? How much responsibility should the general public assign to the law firms, and how much should they assign to the corporations themselves?
Goldstein: There is a shared responsibility in this situation. The law firms involved would not be participating in these union busting attacks unless their clients requested it. Specifically, Morgan, Lewis charges exorbitant hourly rates (thousand of dollars per hour) to companies such as Space X and Trader Joe's. They are eager to pursue these lawsuits as long as they are being compensated. However, there is a concerning lack of ethics at play here, particularly in the case of Space X where Morgan, Lewis former board members Harry I. Johnson III and former board Chairman John Ring lead this litigation. Similarly, at Trader Joe's, former board attorney Kelcey Philips is involved in a case challenging the constitutionality of unfair labor practices in Hartford, Connecticut. It should be noted that these individuals were previously paid by the board and received retirement and benefits, yet they never raised concerns while working there. This blatant hypocrisy should be thoroughly investigated.
If this concerns you—it should. Please feel free to reach out to these companies to share your feelings, or support the Amazon Labor Union or Trader Joe’s United directly. The best way to fight this sort of corporate power grab is, as always, to unionize your workplace.
More
—My book about the labor movement, “The Hammer,” was recently published. I think it is pretty good and so does the New York Times. It would be great if you would order it or buy it at your local bookstore or ask your local library to purchase it. Yesterday there was an interesting piece in The Giving Review that discusses the book’s implications for the world of philanthropy. This is a very worthy discussion. (The piece is quite thoughtful but unfortunately it gets around to touting the Freedom Foundation, who are real anti-worker scumbags. I am happy to discuss more productive ideas on this topic with any interested foundations.)
—Another great and fun thing to do is to join me at one of the stops on my book tour, if I come through your area. Here are upcoming events—and more are still being added. Stay tuned.
TONIGHT: Tuesday, Feb. 27: Brooklyn, NY—At Greenlight Bookstore, 7 pm. With Josh Gondelman.
Tuesday, March 5: Atlanta, GA—At the Carter Center Library, 7 pm. With Sara Nelson.
Monday, March 18: Philadelphia, PA—At the Free Library of Philly, 7:30 pm. With Kim Kelly.
Thursday, March 21: New Orleans, LA—At Baldwin and Co. Books. With Sarah Jaffe.
Wednesday, March 27: Boston, MA— At the Burnes Center for Social Change, 271 Huntington Ave. 6:30 pm.
Sunday, April 21: Chicago, IL— “The Hammer” book event and Labor Notes Conference after party at In These Times HQ. Event details TK.
—Thank you to everyone who subscribes to How Things Work. From the smoldering wreckage of the collapsed journalism industry, this independent publication shall arise to inspiring heights. If you enjoy reading this site, please take a few seconds to become a paid subscriber today. Paid subscribers are the ones who make it possible for me to do this work without becoming a hobo, as is the current trend for reporters in America. Together, I believe that we can sustain this place for a long time to come.
Next they’ll restore company scrip.
What a fascinating coincidence that narcissists try to isolate their targets from their support network & strength in numbers just as certain companies & people try to do the same to their employees.