Donald Trump’s presidential administration is poised to oversee major cuts to the powers of the federal agency that protects unions, as companies like Elon Musk’s SpaceX bombard the National Labor Relations Board with lawsuits and Trump allies consider overturning his fire Democratic members.
This week, Amazon, the nation’s second-largest private employer, and rocket maker SpaceX, founded by Trump adviser Musk, argued in federal court that the NLRB’s structure is unconstitutional. Their case is one of more than twenty cases going through the courts that seek to drastically limit the power of the government.
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Trump advisers have separately discussed taking the extraordinary step of firing Democratic members of the five-member Labor Council, according to two people familiar with the matter, who spoke on condition of anonymity to describe internal discussions.
Taken together, these moves threaten to weaken or even eliminate an agency that has taken a more active role in protecting unions and expanding their opportunities under the Biden administration but has been criticized by companies for pro-union bias and legal exceedance.
“These companies are trying to overturn the law,” said Seth Goldstein, an employment attorney who has represented Trader Joe and Amazon workers, referring to the 1935 law that created the NLRB. “And labor better wake up, because it’s coming.”
Steven Swirsky, an attorney at Epstein Becker Green, a law firm that represents employers, said some are challenging the NLRB that it “exists to benefit unions and employees and impose obligations on employers that go beyond what Congress intended.”
The future shape of workers’ rights in the United States may depend on who wins the legal debate over whether the NLRB can be insulated from direct political interference, says Sharon Block, a Harvard law professor and former member of the Democratic Party’s Labor Council .
“The agency’s independence is protected in part by standards,” Block said, “but President Trump certainly said things that indicated he did not feel bound by those standards.”
The president-elect has signaled his intention to largely rein in federal regulators and said last week that Musk will co-chair the Department of Government Efficiency, an outside body created to recommend deep cuts to federal agencies.
Musk has previously said he disagrees “with the concept of unions” and joked this summer in a conversation with Trump on the social media platform X about firing striking workers.
SpaceX, Musk and a spokesperson for Trump did not immediately respond to requests for comment. Amazon declined to comment. The founder, Jeff Bezos, owns The Washington Post.
The NLRB monitors employees’ union votes and adjudicates allegations of illegal union fraud. It has a staff of administrative law judges and regional directors who monitor and investigate the activities under its purview, under the supervision of the five D.C. board members
Employers who have unlawfully retaliated against their employees may face consequences, such as rehiring dismissed employees or providing back pay. President Joe Biden’s pick for NLRB general counsel Jennifer Abruzzo has frustrated companies by trying to expand the types of damages paid by employers who violate the law.
Agency data show that about 15,000 claims were filed with the NLRB in the fiscal year that ended in September, including by unions and employers. About 40 percent resulted in settlements or administrative rulings.
Abruzzo said in an email that major companies have previously unsuccessfully challenged his authority and noted that the Supreme Court upheld the constitutionality of the board in 1937.
“The NLRB will continue to do what Congress has told it to do, despite the ongoing challenges,” she said.
Abruzzo is seen as one of the most union-friendly people to serve in her role. Trump is widely expected to fire her, just as Biden fired Trump’s previous pick on his first day in office.
If the NLRB loses much or all of its power, workers will be at greater risk of retaliation from employers, said attorney Dan Ocampo of the nonprofit National Employment Law Project.
“We once existed in a regime where there were no labor laws, and that was not good for workers,” he said. “It was the 19th century and the police were called in to break up strikes.”
The flurry of legal challenges against the NLRB began when SpaceX sued the board in January. The lawsuit followed a complaint from the board alleging that SpaceX illegally retaliated against employees who claimed they were wrongfully fired in 2022 for signing a letter accusing CEO Musk of bullying and harassment.
On Monday, Michael Kenneally, an attorney representing SpaceX, argued before a three-judge panel of the U.S. Court of Appeals for the 5th Circuit in New Orleans that the NLRB’s actions against the company were “unconstitutional.”
The company claims that the law that created the NLRB in 1935 improperly prevents the president from firing his staff, including board members and judges, and gives officials an unconstitutional mix of judicial, executive and legislative powers..
Trevor S. Cox, a lawyer representing Amazon, echoed SpaceX’s arguments on Monday, saying “Amazon would be irreparably harmed” if the board were allowed to continue its “unconstitutional procedures.” Amazon’s involvement follows its efforts to halt the unionization of Staten Island warehouse workers after they voted to do so in 2022.
The federal judges who questioned the two companies on Monday appeared skeptical of the employers’ arguments, which were advanced after lower courts refused to halt the board’s proceedings.
The SpaceX and Amazon cases are among at least 26 federal lawsuits challenging the constitutionality of the board. Trader Joe’s and Starbucks also made similar arguments in NLRB proceedings this year. The Supreme Court will have the opportunity to address the question of the board’s constitutionality if circuit courts make conflicting decisions on some of these lawsuits.
Federal agencies structured similarly to the NLRB are increasingly becoming targets of lawsuits, legal scholars say, as recent rulings by the conservative-dominated Supreme Court suggest it is willing to chip away at the cornerstones of the administrative state.
“Trump was able to get conservative judges who were willing to stick their necks out,” said Nelson Lichtenstein, a labor historian at the University of California, Santa Barbara.
One interpretation of the argument that the NLRB is unconstitutionally structured would indicate that the law that created the NLRB is abolished. But there are “other ways to undermine unionism” than “completely crushing the entire power of the NLRB,” said Diana Reddy, a law scholar at the University of California, Berkeley.
When Amazon attorney Amber Rogers was asked by a federal judge during a September 24 hearing in Texas what the company envisioned would replace the NLRB if the case proves the agency unconstitutional, she initially said it was “not was clear”.
Rogers also said it would be “up to Congress” to rewrite the underlying law. In the meantime, she said that while some workplace cases can still be handled by the agency, other cases would have to go to a conventional jury trial, a potentially more expensive and time-consuming process for employees.
Kate Andrias, who teaches labor and constitutional law at Columbia Law School, said a return to the days before federal worker rights is not the most likely outcome. “It is more likely that we will see this take away the powers of the board rather than the board as a whole being taken down immediately,” she said.
Lichtenstein agreed, saying that the slow pace of governance already benefits companies, and that the law underpinning it prevents certain economically damaging tactics such as secondary boycotts. “One of the reasons we haven’t had labor law reforms in 60 years is because the labor laws that exist now work for companies,” he said.
Kara Deniz, a spokesperson for the Teamsters union, which represents 1.3 million U.S. workers, said in a statement that because existing regulations already favor bosses, “workers are no longer solely dependent on a government process.”
The union has led efforts to unionize Amazon since June, saying it will rely on actions such as strikes and walkouts rather than filing charges or holding union elections under the NLRB’s jurisdiction.
If the NLRB survives under the second Trump administration, lawyers and legal scholars agree that unions will likely bring fewer cases before the organization. Should Trump stamp it out, “we would see some very large strikes,” said Reddy, the Berkeley law professor.
Randy Bryce, an ironworker in Wisconsin, agreed that in the absence of management, workers would be forced to resolve conflicts “the same way we got unions in the first place: by withholding our labor.”
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