Attack of the Corporations: Are the NLRB’s Days Numbered?

With SpaceX in the lead, a group of very rich corporations, some headed by billionaires have brought suit arguing that the National Labor Relations Board is unconstitutional. The corporations are SpaceX, Trader Joe’s, Amazon and Starbucks, and their legal case smacks of sour grapes, since they’ve been charged with hundreds of worker organizing rights violations over the years. You don’t have to scratch too far beneath the surface to get other paleolithic goals, besides defenestrating the NLRB, which these companies might likely pursue, such as opposition to the right to strike, to unionize, to the minimum wage and in general promoting the return of the bad old days of the nineteenth and early twentieth centuries when labor lay crushed and bloodied (and sometimes violently fought back) under capital’s fist. These gigantically profitable corporations haven’t announced these other aims, but that’s definitely the vibe.

Under the National Labor Relations Act of 1935, the NLRB has a mostly two-pronged job. It prevents employers from committing unfair labor practices and allows for secret-ballot elections among employees who are unionizing. Thus the NLRB is an administrative tribunal that resolves matters arising under the Labor Relations Code; so, like a court, it has power over bosses, corporations and employees. The four corporations currently trying to sue it out of existence find that power intolerable, because clearly, they believe there should be no constraints on their power, that their power over workers should be absolute. That’s what their assault on the NLRB and thereby the whole New Deal labor-management architecture says, and that’s what their abusive workplace behavior says. Dispiritingly, in a similar case, the American Civil Liberties Union, of all groups, is also suing the NLRB, arguing that the agency’s general counsel was unconstitutionally appointed. This in response to the ACLU being charged with wrongfully firing an employee. With friends like these on the left, who needs enemies?

SpaceX’s Elon Musk has a particularly bad track record. He vigorously helped squash a union drive at his 20,000 worker Tesla plant in Fremont, California in 2017 – and later in Buffalo. As In These Times headlined an article February 16, 2023, “Tesla Workers Announced a Union Drive. The Next Day They Were Fired.” Over 30 workers in Buffalo lost their jobs, for partnering with the SEIU-affiliated Workers United. (At the time, the company sent an email to employees banning recording workplace meetings without all participants’ permission – such recordings of illegal management threats and lies had been famously put to good use by Starbucks workers.) These 2023 firings “add to a long record of both alleged and documented labor abuses for Musk and his companies.”

Earlier, in the 2017 union drive, Musk personally attacked an organizer on social media, and called the unionizing effort “morally outrageous.” According to NLRB rulings, Tesla resorted to illegal tactics, committing unfair labor practices like “restricting workers from wearing union T-shirts and a tweet by Musk warning that employees would lose their stock options if they unionized.” Meanwhile “Tesla is facing at least ten lawsuits from former workers alleging rampant racism and sexual harassment, including at the Fremont factory, where workers have also reported more safety violations than at slaughterhouses and sawmills.”

Things are not great at Trader Joe’s either. The NLRB has accused the company of firing a pro-union worker, spreading lies to thwart organizing and illegally retaliating against its employees. According to an October 4 Fast Company reprint of a Capital & Main article, Trader Joe’s has “delivered threats, told people they wouldn’t get raises if they unionized.” The article quotes the union’s communications director, Maeg Yosef: “Despite its progressive and folksy reputation, Yosef said, Trader Joe’s ‘has rolled out the sort of union-busting campaign you might see at Amazon or Starbucks.’”

Union organizing began at Trader Joe’s in 2022. This at a time in the industry when unionized grocery workers number far fewer than they did 40 years ago. Back then, one-third of grocery workers belonged to a union. “Today unionization rates among supermarket workers are half that.” Huge nonunion supermarkets like Target and Walmart are part of the problem. “Since June 2022, Trader Joe’s United has filed 48 charges of unfair labor practices…from firing union supporters to failing to bargain in good faith.”

Unlike SpaceX, Starbucks and Amazon, Trader Joe’s is not owned by a celebrity plutocrat. But its owner is still a billionaire, one that just hasn’t garnered as many headlines as the other three honchos (Starbucks’ founding billionaire no longer owns it outright but is its main individual shareholder). What all four of these corporations and their owners share is a profound antipathy to unions.

Very much in the news in recent years have been organizing drives at Starbucks and Amazon and the corporate, high-profile fights against those efforts. Amazon’s jefe also owns the Washington Post, notable for opinion pieces on such matters as how the minimum wage harms workers. The NLRB says that there are over 250 open or settled cases against Amazon.

Meanwhile, Starbucks’ CEO was on Hillary Clinton’s list to be Labor Secretary if she won the white house in 2016. That tells you all you need to know about HRC – eager to nominate a labor nemesis to run the department supposedly dedicated to labor’s welfare – namely, that she’s as anti-union as the GOP. I mean, in what universe is Starbucks billionaire Howard Schultz considered any better for your average worker than that GOP darling, labor secretary and wife of Mitch “Democracy’s Gravedigger” McConnell, Elaine Chao? They both are lousy choices to
to head an agency entrusted with labor’s well-being and prove that many Dems along with the entire GOP learned a core lesson from Ronald “Fire the Air Traffic Controllers” Reagan: always put the fox in charge of the chicken coop.

Not all companies have responded to union drives with such hostility. Ben & Jerry’s and Microsoft have “tried to start a positive labor-management relationship,” the Economic Policy Institute reported on March 7, in an article arguing that the legal battle to ditch the NLRB relies on “long-rejected constitutional arguments about the agency’s structure.” EPI notes that none of the workers at Starbucks, Amazon or Trader Joe’s have a collective bargaining agreement yet, because these companies “have stalled the bargaining process.”

EPI also observes that at the NLRB “there are 741 open or settled cases against Starbucks…[and] 45 decisions finding that Starbucks has broken the law.” That’s why these companies want the NLRB to have “to spend scarce resources to defend itself.” The NLRB challenges their power; it holds them to account. That’s why it’s labor’s tribunal of last resort, and that’s why we need it to survive this current assault that, if successful, would toss all working people back into the dark times of no rights, toil without end and the capricious, unchecked tyranny of capital.

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