Union-busters hope to get U.S. Supreme Court to gut labor law

“Four score and seven years ago,” the U.S. Supreme Court declared the National Labor Relations Act to be legal and constitutional. However, a current flood of corporate challenges to that 1937 landmark decision could weaken, if not destroy, the federal law and its agency established to protect workers.

The suspected collusion by rich and powerful corporations accused or found guilty of breaking federal labor law could have a chilling effect on organized labor – AND on U.S. workers even seeking to unionize.

The 21^st century “robber barons” attacking the law include Elon Musk (SpaceX, Tesla and X [formerly Twitter]), the Albrecht family’s Trader Joe’s grocery chain, and Jeff Bezos (Amazon).

Musk – whose factories in California, Nevada and Texas have had frequent complaints about safety and labor relations – first filed his lawsuit in the 5^th U.S. Circuit Court of Appeals, a receptive venue covering Louisiana, Mississippi and Texas for conservative activists seeking sympathetic ears.

“Bezos jumped on the bandwagon,” said Jennifer Abruzzo, General Counsel for the National Labor Relations Board (NLRB).

Decades ago, most U.S. companies opposed the law when it was passed but accepted the Supreme Court’s 5-4 ruling that it’s constitutional. Despite that failure to derail the NLRA, 21^st century corporations seem to be using lawsuits to at least threaten and pressure the law’s NLRB from enforcing workers’ rights, said Abruzzo, who suspects the real goal is to get a free hand to treat workers however they desire, without “interference” by laws.

The law and Board are vulnerable. The NLRA was set up to safeguard workers’ rights, but the law didn’t give the agency the power to directly penalize lawbreakers.

The corporations are suing to avoid answering to the Board for employers’ labor law-breaking in general “and for repeatedly violating workers’ right to organize and collectively bargain,” Abruzzo said.

“These esoteric arguments came about why? Because we dared to issue a complaint against SpaceX after it unlawfully fired eight workers for speaking about their workplace concerns, Abruzzo continued. “And then Amazon jumps on the bandwagon, Starbucks jumps on the bandwagon, Trader Joe’s, others get in on the action just because we’re trying to hold them accountable for repeatedly violating workers’ rights to organize and collectively bargain through representatives of their free choosing.

“Unfortunately, it seems to me they’d rather spend their money initiating court litigation rather than improving their workers’ lives and their own workplace operations,” she added. “There’s also this secondary goal, I think, which is to divert attention away from the fact that they are actually lawbreakers who need to be held accountable in a timely manner. And frankly, that strategy is working. There’s a lot of public reporting about the challenges as opposed to the law-breaking.”

Today, the NLRA is the nation’s only federal law that protects the rights of workers to organize and bargain collectively. Indeed,             Congress is chronically gridlocked into non-action, and after Trump appointments, the federal judiciary has many more conservative judges presumably receptive to Big Business’ priorities, including keeping workers from unionizing.

Elsewhere, Starbucks already argued at the Supreme Court, whose Justices last month seemed open to the anti-union company’s claim that the NLRB oversteps its authority by having federal judges issue injunctions against employers that NLRB Administrative Law Judges determined had probably broke labor law.

Starbucks is challenging the long-accepted “test” for determining the appropriate time for federal judges to issue an injunction for some relief during a pending investigation. Injunctions can require suspected lawbreakers to reinstate workers fired for protected “concerted activity,” to negotiate in good faith, to reopen stores or factories closed as retaliation, etc.

Labor advocates argue that injunctions are vital because taking cases to federal courts can take months, if not years, to resolve, meaning victims of criminality continue to deal with the illegal consequences.

“It seems there are a lot of low-road, deep-pocket employers,” Abruzzo said, “searching for injunctions from the courts, to slow us down or to prevent us from engaging in enforcement against them.” (Also – oddly – some employers are seeking their own injunctions to halt enforcement of the law.)

The Supreme Court’s Starbucks decision is expected next month.

The overall campaign shows how far Big Business has come from accepting labor law that ended reduced workplace disruptions and the property damage and even violence not uncommon before its passage. Further, it shows how far the high court has fallen.

“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,” commented Kate Andrias, a Columbia University law professor. “In a series of prior cases, the conservative justices have already weakened administrative agencies and cut back on workers’ rights.”

Examples in recent years include the Supreme Court ruling against precedents about public-sector unions’ fair-share fees, against farm workers unionizing, and permitting employers to sue for damages tied to legal work stoppages.

“The corporate attack on the NLRB also seems to be a response to growing support for unions among Americans,” Andrias said.

But this time of chronic law-breaking is clearly the wrong time to weaken the government’s ability to seek justice. And relaxing or eliminating existing enforcement tools, however feeble they are, could delay bargaining as well as unionizing campaigns.

“If these corporations prevail with their constitutional challenges, the NLRB will no longer be able to function,” Andria said.

More than a “chilling” effect, that outcome would freeze out modern labor relations and risk returning to the early 1930s’ actions and methods, where “labor peace” was an unachieved demand.