Amazon, Starbucks, SpaceX and Trader Joe’s are all facing NLRB complaints over their alleged harassment, intimidation and illegal firings of unionizing employees.
Each of the four companies recently responded by challenging the constitutionality of the New Deal-era agency in federal court, which could upend the NLRB structure.
The NLRB is key to President Biden’s mission to be the most “pro-union” president in history and a bulwark for the rise in union activity. But the agency could suffer a serious blow to its power if the companies’ challenges succeed.
“This energy in the labor movement is at least in part fueled by the knowledge that workers have that they are protected when they undertake these kinds of activities,” said Sharon Block, a former NLRB member who now works as a professor and executive director for the Center for Labor and a Just Economy at Harvard Law School.
“If that protection slips or continues to slip, or slips even more, then that’s a different calculus for workers in deciding whether to undertake those kinds of activities,” she added.
Elon Musk’s SpaceX first filed a complaint against the NLRB in January, after the labor board hit the rocket company with a complaint for allegedly firing eight employees for circulating an open letter that was critical of the company and Musk.
In the filing, SpaceX argued that because of restrictions on the removal of NLRB board members and judges, the “constitutionally required degree of control is lacking.”
SpaceX also argued that the NLRB’s proceedings violate its Fifth Amendment right to due process and Seventh Amendment right to a jury trial.
The complaint calls into question the “basic structure” of the NLRB, Block said.
Broadly speaking, if an NLRB investigation finds sufficient evidence to support a charge brought by an employee, union or employer. The agency then either facilitates a settlement or issues a complaint, representing the charging party in a hearing before NLRB administrative law judges.
“Once you’re investigating a charge, you’re supposed to be completely neutral. You’re fact-finding, you’re doing an investigation,” Rana Roumayah, a partner at Honigman LLP who worked as an NLRB lawyer for 23 years, told The Hill.
“Where it kind of switches is once the NLRB determines that there’s enough evidence for a violation. Then you step out of the neutral role, and you step into a prosecutorial role.”
Ultimately, the companies facing NLRB pressure for alleged labor law violations have turned the complaints on their head, arguing that the agency itself is overstepping the law.
“If SpaceX was successful, you would have the agency that is responsible for protecting the rights of people to be in unions, to act concertedly, having a much more difficult time doing its job,” Block said.
The Hill’s Taylor Giorno and Julia Shapero have more here.
