Elon Musk boasts that he’s a “free speech absolutist”, but that didn’t stop his rocket company, SpaceX, from firing eight workers who had criticized him for making light of reports that SpaceX had settled a sexual harassment claim against him.
Not stopping there, SpaceX has moved to put the National Labor Relations Board (NLRB), the US’s top labor watchdog, out of business. Earlier this year, a day after the board accused SpaceX of illegally retaliating against those workers, SpaceX filed a first-of-its-kind lawsuit that seeks to have the labor board – which has successfully overseen relations between business and unions since the 1930s – declared unconstitutional and shut down.
In so doing, Musk and SpaceX have joined a broader, rightwing effort that hopes to hobble the federal government’s ability to regulate business. Indeed, SpaceX’s lawsuit could serve as a potent wrecking ball in the right’s push to weaken and perhaps demolish the administrative state – the network of federal agencies that the US Congress created to, among other things, promote workers’ safety on the job, prevent fraud in financial markets, protect workers’ right to unionize, limit environmental hazards, make sure consumer products are safe and administer social security for seniors.
With their lawsuit, SpaceX and Musk – who owns 42% of that company’s shares and controls 79% of its voting power – are seeking not just to silence the eight employees who criticized Musk, but also to shut down the agency that protects such workers’ rights to speak out at all. Musk, the $180bn man, is throwing a legal temper tantrum because the NLRB has sought to hold him and SpaceX accountable.
Those employees wrote a letter saying: “Elon’s behavior in the public sphere is a frequent source of distraction and embarrassment for us.” They wrote that letter after Business Insider reported that SpaceX had paid $250,000 to silence a company flight attendant who accused Musk of exposing himself and propositioning her for sex. Musk dismissed her in a tweet, saying she was a “liar” and that the incident “never happened”.
The NLRB’s complaint against SpaceX is based on a law, the National Labor Relations Act, that makes it illegal for companies to fire or otherwise retaliate against workers who join together to push to improve work conditions. In their letter, the eight employees also called on SpaceX to spell out its anti-harassment policies and enforce them more effectively.
If SpaceX’s lawsuit succeeds in getting the federal courts to declare the NLRB unconstitutional, it could set a dangerous precedent that other courts seize on to weaken or even eviscerate other federal agencies, such as the Environmental Protection Agency (EPA), the Occupational Safety and Health Administration (Osha), and perhaps even the Federal Election Commission (FEC) and the Social Security Administration.
SpaceX’s lawsuit seeks to build on a case in which George R Jarkesy Jr, a rightwing activist and radio talkshow host, persuaded the hard-right fifth circuit court of appeals to declare the Securities and Exchange Commission unconstitutional after it fined Jarkesy hundreds of thousands of dollars for defrauding investors.
In their effort to blow up the NLRB, Musk and SpaceX are hoping to capitalize on the federal judiciary’s sharp rightward turn – a shift accelerated during Donald Trump’s presidency. It shouldn’t be a surprise that SpaceX filed its lawsuit in Texas, the state that arguably has the nation’s most extreme, most activist conservative federal judges. Following SpaceX’s lead, Amazon, Trader Joe’s and Starbucks also filed legal papers seeking to have the NLRB declared unconstitutional.
Like SpaceX, those companies face NLRB charges of illegally retaliating against workers. One way to look at all this is that a band of billionaires – Elon Musk, Amazon’s Jeff Bezos, Starbucks’ Howard Schultz, and Trader Joe’s German owners, the Albrecht family – are seeking to kill the federal agency that protects typical workers when they seek to unionize or merely speak up for better conditions.
Using uncharacteristically tough language, Jennifer Abruzzo, the labor board’s general counsel, slammed SpaceX, Starbucks and the other companies as “deep-pocketed, low-road employers” that seek to stop the NLRB from fulfilling its pro-worker mission “because they have the money to do so”.
“Unfortunately,” Abruzzo added, it seems that SpaceX and the others “would rather spend money initiating court litigation than improving their workers’ lives”.
If these “low-road employers” prevail, the whole NLRB process of holding union elections and prosecuting companies that violate labor laws could crumble. This “would leave US workers more vulnerable to exploitation”, Kate Andrias, a law professor at Columbia, wrote recently.
Of course, for Starbucks and Trader Joe’s, this effort to have the NLRB declared unconstitutional could backfire – sabotaging the “progressive” image they have long sought to cultivate. Many Starbucks and Trader Joe’s customers might be outraged that the companies that furnish them with lattes and organic produce have joined this conservative legal and political assault.
Many legal experts have derided one of SpaceX’s main arguments: that the labor board’s administrative law judges – who determine, for instance, whether a company violated the law by firing pro-union workers – should be deemed unconstitutional. SpaceX asserts that the NLRB’s judges exercise executive functions and therefore that the president, as the head of the executive branch, should be free to fire them. (Under federal labor law, they can be fired only for cause.) SpaceX makes this argument even though it’s crystal clear that the labor board’s judges merely do what judges do: issue judicial decisions.
Moreover, what SpaceX is demanding would allow Trump, if re-elected, to do something that corporate America would hate – fire labor board judges because they upset him by ruling in favor of companies whose CEOs had criticized him or not donated to his campaign. Administrative judges – whether labor board judges, immigration judges or social security judges – have legal protections against being summarily fired so that they can make honest, independent decisions without fear of being terminated for political reasons.
It is sad, if not altogether surprising, that SpaceX, Amazon, Starbucks and Trader Joe’s have joined a rightwing effort to destroy the federal agencies that set the rules that helped make the US the world’s richest nation and Musk, Bezos, Schultz and other billionaires fabulously wealthy. Now these billionaires are seeking to destroy the NLRB so that they can become even more fabulously wealthy.
This is yet another unsettling example of plutocrats exercising their financial might to reshape government to their liking. It’s an effort that, if successful, will hurt millions of average Americans – consumers, workers, small investors and anyone who wants the environment protected.
Here’s hoping that public interest prevails over Musk and the billionaires.
Steven Greenhouse, a senior fellow at the Century Foundation, is an American labor and workplace journalist and writer
