A multi-pronged legal attack under way by Elon Musk, large corporations, business groups and anti-union litigators threatens to “raise havoc” with US labor law and hobble a resurgent labor movement, according to experts.
So far efforts to scale back or undermine workers’ rights through the US courts have centered on the National Labor Relations Board (NLRB) – the US top workplace watchdog and overseer of union elections. But other laws – including trademark and property rights statutes – are also being used.
Both Musk and Starbucks are pursuing cases that would undermine the NLRB.
Musk’s company SpaceX filed a lawsuit championed by the Federalist Society and other conservative groups against the NLRB in January. The lawsuit claims the board is unconstitutional because its members can only be removed for cause, not at will, and claims the board violates due process protections. The suit was filed in Texas by Musk’s attorneys with the union avoidance law firm Morgan Lewis in response to a board complaint that SpaceX fired workers in retaliation for writing a letter over concerns about Musk’s behavior.
“This is one of the most audacious and bold attempts to reverse the decisions of the 1930s and the way in which American labor law has operated for nearly 90 years,” said William Gould IV, Charles A Beardsley professor of law, emeritus, at Stanford Law School and chairman of the NLRB from 1994 to 1998. “This would raise havoc with the effective administration of labor law in our country which is designed to be for the benefit of workers and the collective bargaining process.”
Starbucks is challenging the NLRB’s ruling that the world’s largest coffee chain must rehire seven fired union activists in Memphis, Tennessee. The board won an injunction ordering Starbucks to reinstate the workers with backpay and a lower court ruled the firings probably discouraged other employees from exercising their rights under US labor law.
Starbucks Workers United union has won elections at more than 350 stores but has yet to agree a union contract at any location. NLRB regional offices and administrative law judges have found dozens of labor law violations committed by Starbucks since the union campaign began in late 2021.
The US supreme court will now hear the case, which centers on whether the NLRB has the right to ask courts to reinstate workers while litigation is ongoing – referred to as 10(j) injunctions. Unfair dismissal cases can take years to hear and the agency – which asked the supreme court not to take the case – has argued removing the power will have a chilling effect on union organizing.
Starbucks praised the decision: “We are pleased the supreme court has decided to consider our request to level the playing field for all US employers by ensuring that a single standard is applied as federal district courts determine whether to grant 10(j) injunctions pursued by the National Labor Relations Board,” a Starbucks spokesperson said in response to the decision.
Gould argued this case involves the most important tool that the NLRB currently has at its disposal to enforce the National Labor Relations Act (NLRA).
“My labor board, when I was chairman in the 1990s, used this provision more than any other labor board in the entire 90-year history of the board. This is the most effective weapon we had,” Gould said.
“The ramifications are enormous,” he continued. “Everyone has recognized labor law reform is necessary to make the NLRA statute work. All Congress has given in the nature of labor law reform is section 10(j). The effect of this is to make wrongdoers less concerned about engaging in misconduct because they will not be brought to justice in the foreseeable future. The only way that the statute can work effectively is to operate judiciously so that workers when confronted with a choice about whether to join a union or not, will not be faced with a choice that means that they will have to wait two, three, four years before their rights can be realized. Section 10(j) is a way of providing for effective enforcement of the statute and this will discourage, I’m afraid, unionization, and will discourage workers who are interested in unionization.”
Given the supreme court’s conservative make-up, and recent decisions and opinions from some of the court’s most rightwing judges, Gould warned that the justices will likely rule in Starbucks’ favor. “This is a court that is hostile to unions, working people, and also my belief is it’s hostile [to] elected representatives altogether predicated upon the view that the unelected judges know more than the other branches of government,” he concluded.
But it is not just the watchdog that is under attack. Starbucks also filed a lawsuit late last year against Starbucks Workers United, alleging trademark infringement. Trader Joe’s filed a similar lawsuit against the union Trader Joe’s United, which a judge in California recently threw out. Medieval Times also filed a lawsuit against its workers’ union, claiming trademark infringement, which was also thrown out by a judge.
Seth Goldstein, a labor attorney representing Trader Joe’s United, said the trademark suits were part of an “emerging toolbox” of anti-union law firms “where they are really using everything they have to try to stop the new organizing movement”.
“I think that there are some dark forces here trying to stop the emerging organizing movement by perhaps throwing out the National Labor Relations Act, and the right of unions like Trader Joe’s, Starbucks or Medieval Times to have their own identification because they know they are losing the union elections and more young people, gen Z and millennials, are attracted to unionizing.”
A spokesperson for Trader Joe’s said in a statement: “Trader Joe’s consistently takes legal action to protect our brand when we become aware that someone other than Trader Joe’s is selling merchandise using our trademarks and trade dress. We will continue to take all appropriate action to protect our brand.”
Cathy Creighton, director of Cornell University’s Industrial and Labor Relations Buffalo Co-Lab and a former NLRB field attorney, said corporations have long used a number of tactics to prevent and dissuade their workers from organizing unions. These tactics have included firings, closing facilities, surveillance, offering increases to pay and benefits or withholding increases, refusing to bargain a first contract with units of workers who have unionized, and employing legal maneuvers to create delays and deplete the union’s resources.
“They’re trying to kill the movement. Corporate America is going full bore after the labor movement and that’s what they’re trying to do is to really annihilate them on every level that they can, including these legal maneuvers,” said Creighton. “There’s a whole body of NLRB case law that it is a violation of federal labor law to sue as a means to prevent organizing and bargaining, so there will be NLRB charges brought in this regard if there haven’t been already.”
Another increasingly popular tactic has been to argue that property rights supersede the rights of workers in workplaces, said David Muraskin, managing director for litigation at the legal advocacy group FarmSTAND.
Muraskin represented groups challenging a North Carolina state law that would have prevented whistleblowers from speaking with legislators, regulators or the media, a law that the North Carolina farm bureau federation defended in court. The US supreme court declined to hear an appeal of a lower court ruling that struck down four provisions of the law.
The North Carolina Farm Bureau did not return requests for comment.
“What the farm bureau and the state came in and said was, well, sure, there’s a first amendment right to record and there’s a first amendment right to speak. But all that is really trumped by the right to property. What’s so shocking about that argument is there is no constitutional right to property,” said Muraskin. “I think this is a way in which the right has turned a weak argument into an anti-social justice tool across a variety of areas, and they’re using it pretty aggressively.”
In New York and Colorado, agricultural business groups are fighting against legislation that ensures farm workers have access to essential services such as legal representation or healthcare, with business groups arguing that their property rights supersede the law.
Colorado passed the Agricultural Workers’ Rights bill in 2021, which would ensure farm workers can access essential service providers while on breaks. The Colorado Livestock Association and a group of farm owners and ranchers filed lawsuits to halt the law from being implemented, claiming the provision in the law violates employers’ rights to exclude people from their property.
“What the Colorado Livestock Association is doing in Colorado to try to weaponize the supreme court’s more business-friendly precedent is happening across the country,” said Kelsey Eberly, a senior attorney with FarmSTAND who is representing farm workers in an attempt to dismiss the lawsuit opposing the bill.
Jenifer Rodriguez, managing attorney of the Colorado Legal Services Migrant Farm Worker Division, argued opposition to the Colorado law is based on outdated precedents as US labor laws passed in the early 20th century excluded farm workers and domestic workers from basic protections that are afforded to other US workers.
She said laws placing the owners’ interests and their property rights over the rights of farmworkers were “based on laws that were originally designed to exclude Black people and immigrants that apply to other working people”.
Farm workers often work in isolated rural areas, and during harvest seasons do not have the time or means of transportation to access basic services, said Rodriguez. She also dismissed arguments against the law given property owners under the law are allowed to develop and enforce rules for visitors.
“Every person regardless of where they come from, what kind of work they do, or where they live, should have access to fundamental services like healthcare, education and legal help,” said Rodriguez.
A spokesperson for the Colorado Livestock Association said in an email on the business group’s attempt to block the law, “since the enactment of Senate Bill 21-087, there has been confusion and instances of individuals entering private property and businesses under the auspices of providing services to those employed on-premises. Colorado Livestock Association (CLA), along with others, has challenged through litigation the unlawful trespass by those posing as service providers for employees on private property as a part of these new labor laws. Additionally, CLA challenged the constitutionality of this provision in law. Given the nature of takings and the application of laws in this pretense, CLA believes compensation should be required by the enacting government entity. The real question is why Agribusinesses are not to be afforded the same reasonable expectation of private property as any other employment entity.”
