Trader Joe’s and SpaceX Argue the US Labor Board Is Unconstitutional

Grocery chain Trader Joe’s is joining Elon Musk’s SpaceX in arguing that the US labor board is unconstitutional. I am strongly rooting for Elon Musk.

Trader Joe’s Follows SpaceX

Bloomberg reports Trader Joe’s Follows SpaceX in Arguing US Labor Board Is Unconstitutional

“The structure and organization of the National Labor Relations Board and the agency’s administrative law judges is unconstitutional,” an attorney for Trader Joe’s said at a Jan. 16 NLRB hearing, according to a transcript Bloomberg News obtained through a Freedom of Information Act request.

SpaceX vs NLRB

On January 4, the Verge reported SpaceX Is Suing to Bust up Federal Union Protections

SpaceX is suing the National Labor Relations Board (NLRB) after the agency accused the Elon Musk-owned company of illegally firing employees. In a lawsuit filed in federal court on Thursday, SpaceX claims the NLRB’s actions are unconstitutional.

On Wednesday, the NLRB filed a complaint alleging SpaceX illegally fired a group of employees for drafting an open letter that criticized Musk’s behavior. The NLRB also claims SpaceX interrogated employees about their involvement with the letter and encouraged employees to quit if they participated in organized activities.

Now, SpaceX is responding with a lawsuit that says the open letter was a “distraction to SpaceX employees around the country.” It claims the NLRB’s proceedings, which involve a hearing in front of an NLRB administrative law judge (ALJ), violate SpaceX’s “constitutional right to trial by jury.” The company also accuses NLRB of violating the Constitution’s rules on the separation of powers, stating the agency’s structure “is miles away from the traditional understanding” of the concept. The NLRB declined to comment.

Is the NLRB Unconstitutional?

The Federalist Society asks the question of the day: Is the NLRB Unconstitutional? The Courts May Finally Decide.

This term, the U.S. Supreme Court is set to hear three major cases involving the power of federal agencies. While those cases are understandably getting a lot of attention, they’re only the tip of the iceberg. Americans are increasingly questioning agencies’ role in our government. They have sued agencies from the FTC to the DOL, arguing that the agencies’ very structures are unconstitutional. These lawsuits rely on different theories, but their thrust is the same: modern agencies have too much power. They insert themselves into private disputes and decide cases involving private rights. In other words, they act like courts. But they have none of courts’ traditional safeguards, such as independent judges and juries.

That problem is most obvious in the National Labor Relations Board. For nearly 100 years, the Board has exercised power over private rights. It decides who can unionize and when. It decides whether union organizers can come on private property. And it decides when and under what circumstances people can bargain about their own employment.

The Board makes these decisions against a partisan backdrop. Its decisions swing from election to election. Democratic Board members vote uniformly for unions, while Republican members side invariably with management. The results depend less on the law than on which party holds the White House.

While many agencies act politically, the Board is a special problem. Unlike other agencies, the Board makes almost all its decisions not through rulemaking, but through one-off panel decisions. That means it can change policy much faster. The “law” can swing wildly from case to case. In fact, according to one study, the Board during the Obama administration reversed a group of decisions that had been on the books for more than a collective 4,500 years.

The Board’s constitutional flaws are also different from those of other agencies. For example, in a recent case involving the SEC, the Fifth Circuit Court of Appeals held that the agency’s structure violated the Seventh Amendment. That was because the SEC can impose civil fines—the kind of claims that must be tried to a jury. The Board has no authority to impose civil fines, so it doesn’t have the same Seventh Amendment problem. Its problem instead comes instead from its unchecked power to decide cases. It controls the outcome in disputes affecting a range of private rights. And those disputes, according to Article III of the Constitution, should be decided only by real judges.

These flaws are becoming more obvious as the Board is taking more radical stances. Just this year, the agency has held that employers may not offer employees severance agreements with non-disparagement clauses, may not have run-of-the-mill work rules like general professionalism requirements, and may not discipline employees for bringing political issues into the workplace. These decisions lacked any connection to real working conditions, much less the law. But without an effective check, the Board has no incentive to trim its own sails.

More people are questioning the Board’s structure. One worker has even sued to invalidate the Board’s whole process. The worker is making a narrow argument: she says the Board’s so-called administrative law judges are too independent from the president to legitimately exercise executive power. But other challenges could also be on the table. For example, in a recent concurrence, Justice Thomas explained that when agencies resolve disputes about “core” private rights, such as property rights, they are exercising “judicial power.” And again, under Article III of the U.S. Constitution, that kind of power can be wielded only by courts.

A successful challenge wouldn’t necessarily abolish the Board. Courts could fix the independent-agency-judges problem by striking down the judges’ removal protections. That’s exactly what the Supreme Court did in a 2020 case involving the CFPB. Similarly, courts could fix the judicial-power problem by reviewing the Board’s decisions more closely. The Board’s flaw is that it has no check: it can flip positions at will without worrying that it will be second-guessed in court. But if courts stopped deferring to its supposed expertise, that problem could go away. The Board could continue processing labor disputes at an administrative level, and people could still get their day in court.

Fortunately, courts seem to be moving in that direction. The Supreme Court recently agreed to hear Loper Bright Enterprises v. Raimondo, a case about when (or whether) courts should defer to agencies. Most observers think the Court will use the case to tighten the standards for judicial review. If it does, the decision could help rein the Board in. The Board would have to defend its decisions in court with little or no deference. And that fact alone might help moderate its political excesses.

But whatever the outcome in Loper Bright, the Board’s power is concerning. For years, the agency has acted like a political appendage of the party in power. That kind of partisanship reduces confidence in the legal system. The Board transparently plays politics with people’s rights. It serves the administration’s friends and attacks the administration’s enemies. People can predict its decisions only by watching the election results. That is not law, but raw political power.

Kill the Damn Beast

I despise public unions and if I was granted one Supreme Court victory, I would have them declare public unions are unconstitutional and dissolve all of them.

There are no pending cases on public unions, but we now have a Labor Relations case pending.

I am solidly behind Elon Musk and Trader Joe’s and hope for a total victory, killing the National Labor Relations board entirely rather than limiting its power.

President Biden time and time again flaunt the court and its rulings. Two examples are student debt and eviction moratoriums, both repeatedly.

The only way to prevent executive override by decree is to kill the damn beast.

Impossible to Get Rid of Bad Cops and Bad Teachers

On June 6, 2020 I discussed Why It’s Impossible to Get Rid of Bad Cops

Union leaders have a mandated goal of protecting bad cops, bad teachers, and corrupt politicians. Unions blackmail politicians and threaten the public they are supposed to serve.

Union leaders will do anything to stay in power, the kids and the public be damned.

The only way to deal with the situation is to “effectively” abolish public unions entirely.

The key word is effectively. What do I mean by that? Take away 100% of their power as opposed to ending their right of association.

Public Unions Have No Business Existing: Even FDR Admitted That

The unions are willing to hold the public hostage without police service, without fire service and without schools to get what they want.

The fact of the matter is simple: Public Unions Have No Business Existing: Even FDR Admitted That.

FDR: All Government employees should realize that the process of collective bargaining, as usually understood, cannot be transplanted into the public service.

FDR: Particularly, I want to emphasize my conviction that militant tactics have no place in the functions of any organization of Government employees. Upon employees in the Federal service rests the obligation to serve the whole people, whose interests and welfare require orderliness and continuity in the conduct of Government activities. This obligation is paramount. Since their own services have to do with the functioning of the Government, a strike of public employees manifests nothing less than an intent on their part to prevent or obstruct the operations of Government until their demands are satisfied. Such action, looking toward the paralysis of Government by those who have sworn to support it, is unthinkable and intolerable.

FDR was correct. I await for a Supreme Court case on public unions entirely, not just the NLRB. Meanwhile, best wished to Elon Musk and Trader Joe’s.