Amazon and others are attacking a US labor watchdog

Are SpaceX and Amazon Trustees of the National Labor Relations Board Constitutional? The Case for a Restraining Order in the Fifth Circuit Court of Appeals

Amazon and SpaceX both argue that the NLRB’s administrative proceedings are tainted because its board members or administrative law judges are unconstitutionally insulated from removal. The president must take care that the Laws be faithfully executed and that includes removing officials according to the clause in the constitution.

The judges mostly prodded the attorneys on the merits of their arguments, and on when the companies would appeal. At one point, Judge James Graves Jr., an Obama appointee, expressed doubt that Amazon had even met the conditions for an appeal — suggesting it should have waited on the ruling from the district court first. The district court denied the request by Amazon for a temporary restraining order.

Judge Richman pressed Michael Kenneally about why the company was trying to appeal rather than waiting for the case to progress in a lower court. Kenneally accused the government of leaning onto procedural arguments because it didn’t have the means to argue against the NLRB’s constitutionality. Graves appeared skeptical. He said it sounded like the argument that if you win on the merits, then just skip over procedure.

The National Labor Relations Board has taken an assertive approach in protecting workers’ rights since Joe Biden became president.

Now, SpaceX and Amazon are at the forefront of a corporate-led effort to monumentally change the labor agency. The attorneys for the two companies will attempt to convince a panel of judges at the Fifth Circuit Court of Appeals that the labor agency is unconstitutional.

That would be an enormous setback for labor groups, who have enjoyed unprecedented support from the Biden administration, and a win for companies that have spent considerable amounts of resources over the past four years trying to keep unions out of their workplaces.

Complicating matters is the fact that President-elect Donald Trump has named SpaceX founder and CEO Elon Musk to co-lead a new commission focused on dismantling government bureaucracy, slashing spending and jobs. Whether the NLRB is one of the agencies Musk will advise on remains unclear.

The issue was the company’s refusal to collectively bargain with the Amazon Labor Union. Workers at Amazon’s Staten Island warehouse voted to unionize.

Labor-Management Relations in the Landau-Bolt Review: The Biden-Invited Claims Are a Distract

NLRB General Counsel Jennifer Abruzzo, a Biden appointee, calls the lawsuits a distraction, pointing to the agency’s 90-year history of governing labor-management relations.

She said at the National Press Club that they were trying to hold violators of the statute accountable. If the agency were not allowed to do its jobs properly, it would be chaos.

Abruzzo is going to be replaced by someone who will set a new tone for enforcement. Peter Robb, a management-side labor attorney who was lead counsel for President Ronald Reagan during the air traffic controllers’ strike, was the last one to be picked by Trump.

In the SpaceX and Amazon cases, all expectations are that a Trump-appointed general counsel will not fight any ruling favorable to the companies. However, similar lawsuits filed elsewhere in the country could result in conflicting court decisions.