…. in calling the National Labor Relations Board unconstitutional
Amazon is arguing in a legal filing that the 88-year-old National Labor Relations Board is unconstitutional, echoing similar arguments made this
year by Elon Musk’s SpaceX and the grocery store chain Trader Joe’s in disputes about workers’ rights and organizing.
The Amazon filing, made on February 15, 2024, came in response to a case before an administrative law judge overseeing a complaint from agency
prosecutors who allege the company unlawfully retaliated against workers at a New York City warehouse who voted to unionize
nearly two years ago.
In its filing, Amazon denies many of the charges and asks for the complaint to be dismissed.
The company’s attorneys then go further, arguing that the structure of the agency — particularly limits on the removal of administrative law
judges and five board members appointed by the president — violates the separation of powers and infringes on executive powers
stipulated in the Constitution.
The attorneys also argue that NLRB proceedings deny the company a trial by a jury and violate its due-process rights under the Fifth Amendment.
An NLRB spokesperson declined to comment on the filing. Amazon did not immediately respond to requests for comment.
Seth Goldstein, an attorney who represents both the Amazon Labor Union and the labor group Trader Joe’s United, said the trend was
“very frightening.”
“Since they can’t defeat successful union organizing, they now want to just destroy the whole process,” he said.
The legal argument from Seattle-based Amazon, which has long resisted organizing efforts and is seeking to redo the sole union win at its U.S.
warehouses, follows similar claims made by SpaceX and Trader Joe’s in a separate lawsuit and an agency hearing last month.
SpaceX sued the NLRB in early January, arguing the structure of the agency is unconstitutional.
The lawsuit came a day after the labor agency accused the company of unlawfully firing employees who wrote an open letter critical of Musk
and of creating the impression worker activities were being surveilled.
At a January labor board hearing over allegations Trader Joe’s retaliated against union activism, an attorney for the grocery chain said
the NLRB and its panel of administrative law judges are structured unconstitutionally.
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In the latest sign of a growing backlash within corporate America to the 88-year-old federal agency that enforces labor rights, Amazon argued in a
legal filing on Thursday that the National Labor Relations Board was unconstitutional.
The move followed a similar argument by SpaceX, the rocket company founded and run by Elon Musk, in a legal complaint in January,
and by Trader Joe’s during a labor board hearing a few weeks later.
The labor board consists of a prosecutorial arm, which issues complaints against employers or unions deemed to have violated federally protected
labor rights; administrative judges, who hear complaints; and a five-member board in Washington, to which decisions can be appealed.
Amazon’s filing was part of a case before an administrative judge in which labor board prosecutors have accused Amazon of illegally retaliating
against workers at a Staten Island warehouse known as JFK8, which unionized two years ago.
The company’s lawyers repeatedly denied in their filing that Amazon had broken the law.
Then, under a section titled “Other Defenses,” they argued that “the structure of the N.L.R.B. violates the separation of powers” by
“impeding the executive power provided for in Article II of the United States Constitution.”
The company also argued that the board or its actions or proceedings violated Articles I and III of the Constitution, as well as the Fifth and
Seventh Amendments — in the last case because, the filing said, board hearings can seek legal remedies beyond what’s allowed without a trial by
jury.
Amazon declined to comment.
The claims it made in the filing echo arguments that lawyers for SpaceX made in a federal lawsuit last month, after the labor board
issued a complaint accusing the company of illegally firing eight employees for criticizing Mr. Musk.
SpaceX sued in Texas, but a federal judge there on Thursday granted the board’s motion to transfer the case to California, where the company’s
headquarters are.
In a statement, the board’s general counsel, Jennifer A. Abruzzo, said, “I am pleased that SpaceX’s blatant forum-shopping efforts in Texas
attempting to enjoin the agency’s litigation against it have failed.”
Wilma Liebman, a chairwoman of the labor board under President Barack Obama, called the arguments by Amazon and SpaceX “radical,” adding
that “the constitutionality of the N.L.R.B. was settled nearly 90 years ago by the Supreme Court.”
The arguments appear to align with a broader conservative effort to question the constitutionality of a variety of regulatory actions,
some of which have resulted in cases before the Supreme Court.
In January, the Supreme Court also agreed to hear a case brought by Starbucks, which is challenging the standard federal judges use to reinstate
employees who are fired during a union campaign.
The outcome of the case could rein in the labor board’s longstanding practice of seeking reinstatement for workers while their cases are litigated,
a process that can take years.
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