The NLRB’s Future

The labor movement desperately needs Kamala Harris to win this week, even if the stupidest parts of it don’t actually realize that. Even if she does though, the future of the movement’s legal framework is tough and that’s because Trump’s legacy will include rafts of judges seeking to repeal the entire twentieth century, including at least parts if not all of the National Labor Relations Act.

Meanwhile, the N.L.R.B. itself is in trouble. This past summer, the Supreme Court’s conservative majority issued three decisions that will systematically weaken the federal agencies that regulate health care, air quality, pharmaceuticals, banks, fisheries, housing, transportation, workers’ rights, and more. The N.L.R.B. was already being attacked as unconstitutional. In 2022, a group of engineers at a SpaceX factory in California had signed a letter condemning their boss, Elon Musk, for his crude “behavior in the public sphere.” He had recently used Twitter—which he was in the process of buying—to mock, and deny, a former SpaceX flight attendant’s allegations of sexual harassment against him. SpaceX responded to the letter by terminating multiple employees, who then filed charges with the N.L.R.B. Earlier this year, the board issued a complaint alleging that the employees had been unlawfully fired, and set a hearing with an administrative-law judge. SpaceX filed a lawsuit in the conservative Fifth Circuit, in Texas, on the ground that the N.L.R.B.’s quasi-judicial structure violates the Constitution. (This is a little like contesting a parking ticket by arguing that traffic court shouldn’t exist.)

SpaceX put forth two major lines of reasoning. First, that N.L.R.B. members and judges are too insulated from removal by the President. Second, that N.L.R.B. proceedings violate the separation of powers and employers’ right to a jury trial. (Incidentally, one of SpaceX’s lawyers is Harry Johnson, a former Obama appointee to the board.) The jury-trial prong of SpaceX’s attack was potentially resolved in June, when the Supreme Court, in Securities and Exchange Commission vs. Jarkesy, ruled that a company does have a right to trial by jury, not by administrative-law judge, when civil penalties are in play. Both the Fifth Circuit and a district court have recently granted SpaceX preliminary injunctions against the N.L.R.B., blocking the agency from acting any further on the claims of the fired engineers—an extraordinary remedy. Those workers will have no recourse to damages or reinstatement until the constitutional questions are settled.

Musk’s strategy has since been adopted by employers such as Starbucks, Amazon, Trader Joe’s, and the nonprofit Audubon Society in a growing number of cases, according to Diana Reddy, a law professor at the University of California, Berkeley. Reddy and other experts I spoke with don’t believe that the N.L.R.B. or its underlying statute is necessarily doomed, or at least not completely. Judges and board members could be made “terminable at will” to address the removability concern, Reddy explained, and the agency could perhaps empanel administrative juries. “I think there will still be an N.L.R.B.,” Adrienne Paterson, an employer-side lawyer at the law firm Perkins Coie, told me, “but if there’s more ability to remove a judge or a board member, the impact will probably be deeper swings back and forth between Administrations.” All this whorling litigation, spurred on by the Supreme Court, could result in a more politicized, less capable regulatory apparatus. And, for an agency as leanly staffed and funded as the N.L.R.B., the accumulation of constitutional challenges is an existential burden.

Lots of left labor folks will say the labor movement to some extent brought this on itself by not organizing. There’s some truth there, but it misses the point that organizing effectively before 1937 was almost impossible. We’ve read too much about heroic violent failures and too little about how limited any labor gains really were. Unions do need to organize more, yes. But the other thing that needs to happen is keeping Democratic control of the presidency and Senate long enough to push through enough judges on all the courts to reject this. Biden has done an OK job with appointments, even if Jackson is way too moderate institutionalist on the Supreme Court in the way Kagan is. But that’s just not enough. There is a very good chance that Democrats will have won the popular vote in all but one election since 2000 and we will face far-right governance in this country as if it was the days of Calvin Coolidge.