OnLabor

With worker organizing and collective action on the rise—and garnering greater and greater popular support—employers are deploying a new(ish) response: attacking the constitutionality of the National Labor Relations Board and thus the nation’s system of labor law. These attacks come from a range of prominent employers (to date: SpaceX, Trader Joe’s, and Amazon) and are multi-pronged (to date: that Board members and ALJs are impermissibly shielded from Presidential removal, that Board adjudications violate the VII Amendment right to jury trial, that the Board is a separation-of-powers violation, and that it presents a major-questions-doctrine or non-delegation problem). Although the claims may have seemed outlandish a handful of years ago, the current Supreme Court’s hostility to the administrative state requires that we take them seriously.

A bellwether company in the U.S., Starbucks — despite its “progressive” reputation — has enacted vicious anti-union policies. And yet, workers at hundreds of Starbucks stores across the country have succeeded in organizing and winning union representation. Predictably, Starbucks is dragging out the bargaining process, violating workers’ labor rights, and continuing to interfere with employees’ choice to join a union.

With a Democratic majority on the Board and an admirably ambitious General Counsel, the Biden NLRB promises to be among the most consequential in history.