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Kate Andrias, Columbia University
, , 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.
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.
For example, it has made it possible for the unionization process to move faster and has sought to quickly reinstate workers who are illegally fired for organizing unions, rather than waiting years for litigation to play out.
