SpaceX and Amazon are among the companies that have filed lawsuits challenging the constitutionality of the National Labor Relations Board.
In the nearly four years that Joe Biden has been president, the National Labor Relations Board has taken an assertive — some say overly aggressive — approach to protecting workers' rights to organize and collectively bargain.
Now, SpaceX and Amazon are at the forefront of a corporate-led effort to monumentally change the labor agency. On Monday, attorneys for the two companies will try to convince a panel of judges at the Fifth Circuit Court of Appeals that the labor agency, created by Congress in 1935, is unconstitutional.
Their lawsuits are among more than two dozen challenges brought by companies who say the NLRB’s structure gives it unchecked power to shape and enforce labor law.
A ruling in favor of the companies could make it much harder for workers to form unions and take collective action in pursuit of better wages and working conditions.
That would be an enormous setback for labor groups, who have enjoyed unprecedented support from the Biden administration, and a win for companies that have spent considerable amounts of resources over the past four years trying to keep unions out of their workplaces.
Complicating matters is the fact that President-elect Donald Trump has named SpaceX founder and CEO Elon Musk to co-lead a new commission focused on dismantling government bureaucracy, slashing spending and jobs. Whether the NLRB is one of the agencies Musk will advise on remains unclear.
Ultimately, these cases could make their way to the Supreme Court.
Board found fault at Amazon and Space X
The lawsuits brought by Amazon and SpaceX came after the NLRB issued complaints of its own. Agency investigations found the companies had violated the rights of their employees.
At Amazon, the issue was the company’s refusal to collectively bargain with the Amazon Labor Union. Workers at Amazon’s Staten Island, N.Y., warehouse voted to unionize in 2022.
At SpaceX, the complaint involved eight employees who said they were fired in retaliation for speaking critically of Musk.
Both companies argue that the labor agency’s structure violates the separation of powers.
“The NLRB routinely exercises authority to prosecute alleged violators of federal labor law, define the legal standards that govern the prosecutions, and weigh the facts necessary to find a violation — with only limited judicial review by Article III courts,” attorneys for SpaceX wrote in a court filing.
The companies also find fault with the president’s inability to fire NLRB board members, who serve five-year terms, and in SpaceX’s case, its administrative law judges.
Additionally, they argue the NLRB’s system for adjudicating cases denies them the right to a trial by jury.
Jennifer Abruzzo, general counsel for the National Labor Relations Board, sits at agency headquarters in Washington, D.C., on Monday, June 13, 2022.
Amanda Andrade-Rhoades
NLRB General Counsel Jennifer Abruzzo, a Biden appointee, calls the lawsuits a distraction, pointing to the agency’s 90-year history of governing labor-management relations.
“We are trying to hold violators of our statute accountable,” she said at the National Press Club in October. “It would be chaos if the agency was not allowed to perform its functions and do it properly.”
Anticipating a slowdown in enforcement
Workers' advocates are bracing for a slowdown in labor law enforcement in a second Trump administration.
For starters, Trump is expected to fire Abruzzo immediately, exercising power he does hold. (Biden fired Trump’s appointee to that position on his first day in office.)
Since 2021, Abruzzo, who acts as the NLRB’s prosecutor, has taken a broad view of the protections labor law offers private-sector employees. She has worked to remove barriers to organizing, most recently winning a board ruling outlawing “captive audience” meetings, or mandatory meetings at which employers try to dissuade workers from unionizing.
Trump is expected to replace Abruzzo with someone friendly to employers, who will set a new tone for enforcement. Last time around, Trump’s pick for the job was Peter Robb, a management-side labor attorney who served as lead counsel for President Ronald Reagan during the air traffic controllers' strike.
In the SpaceX and Amazon cases, all expectations are that a Trump-appointed general counsel will not fight any ruling favorable to the companies. However, similar lawsuits filed elsewhere in the country could result in conflicting court decisions.