The US’s top labor lawyer has said her agency will not “succumb” to Amazon, Starbucks and SpaceX’s attempts to legally challenge the National Labor Relations Board and its ability to enforce federal labor law.
Jennifer Abruzzo, the NLRB general counsel, accused some of the US’s largest corporations of “jumping on the bandwagon” in mounting legal challenges to the labor watchdog, which has found itself at the center of the ongoing battle between the companies and a wave of unionizing efforts by workers.
Attorneys representing Elon Musk’s SpaceX, Amazon, Trader Joe’s and Starbucks have all argued in recent months that the NLRB is “unconstitutional” and has overstepped its authority.
“There is no way, despite our very limited resources and board agents being overwhelmed with quite a number of cases … that we’re going to succumb to the pressures imposed in addressing these challenges and in defending the constitutionality of our agency structure,” Abruzzo said at a webinar event hosted by the Roosevelt Institute.
Abruzzo, who was appointed by Joe Biden in 2021, said the legal challenges against the NLRB had been launched in retaliation for the agency doing its job.
“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. 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.”
SpaceX filed a lawsuit in court against the NLRB over a complaint issued by the agency that the company fired workers in response to a letter they wrote about workplace concerns and comments made by Musk.
The NLRB’s constitutionality was upheld in a 1937 ruling before the United States supreme court and it is not yet certain the court will revisit that ruling. But the legal fight could further delay union contract negotiations that have already been stalled by corporations including Amazon and Starbucks and stoked concerns over how the right-leaning supreme court would rule if it did decide to take up one of these cases.
Abruzzo noted there has also been an increase of employers seeking preliminary injunctions to try to delay or prevent the NLRB from engaging in enforcement actions against them. She cited several recent judgments the board obtained against SpaceX related to its severance agreements, against Starbucks over its prohibition of union-material distribution and a judgment against Amazon related to its employee off-duty access rules.
“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,” added Abruzzo. “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.”
Biden has touted himself as the “most pro-union president in history” and the NLRB under his administration has reversed several policies and decisions implemented by the board under Trump.
Since the Covid-19 pandemic and continuing under the Biden administration, the US labor movement has been experiencing a resurgence in union organizing, strikes and other labor actions. The NLRB recently reported that in the first six months of the current fiscal year, October 2023 to March 2024, union election petitions rose 35% and unfair labor practice charge filings increased by 7% compared with the prior year.
“Our congressional mandate is to encourage peaceful resolution of industrial disputes and that depends on an effective means to vindicate public rights. It means we have to be able to operate and frankly. Even some who focus on employer interests have publicly said that there would be chaos at the workplace without a functioning NLRB and I completely agree with that,” Abruzzo concluded.
