“One Final Thing”

On January 4, Musk’s SpaceX aerospace company filed a lawsuit arguing that an NLRB case against it should be put on hold because the agency’s structure violates the US Constitution’s “separation of powers,” denying the company due process. The filing came the day after the board issued a complaint against SpaceX for what it argued was the illegal retaliatory firing of eight workers who had criticized Musk in an internal letter. The challenge was filed in Texas by Musk’s attorneys from Morgan Lewis, the storied union-busting law firm. It cites a Federalist Paper written by James Madison and compares the NLRB’s structure to “the very definition of tyranny.” The charge is being championed by conservative groups like the Federalist Society.

Of the filing, William Gould IV, professor emeritus of law at Stanford Law School and a former chairman of the NLRB, told the Guardian, “This is one of the most audacious and bold attempts to reverse the decisions of the 1930s and the way in which American labor law has operated for nearly ninety years.”

The lawsuit comes on the heels of Starbucks challenging a federal judge’s ruling ordering the company to reinstate seven pro-union workers terminated in February 2022. Last month, the Supreme Court agreed to hear the case, which concerns whether the agency has the right to ask courts to reinstate workers while litigation is ongoing, a measure referred to as a 10(j) injunction and one that offers workers a means to avoid waiting years to exercise their rights as employer appeals wend their way through the courts.

Less than two weeks after SpaceX’s filing, Trader Joe’s echoed its challenge of the NLRB’s constitutionality. At a January 16 NLRB hearing in Connecticut, Christopher Murphy of Morgan Lewis argued in the company’s defense, previewing the tack the company plans to take in fighting a litany of union-busting charges from Trader Joe’s United (TJU), an independent union of the company’s workers. A transcript acquired by Bloomberg through the Freedom of Information Act shows Murphy informing Judge Charles Muhl that he’d like to add “one final thing” as an affirmative defense.

“The National Labor Relations Act as interpreted and/or applied in this matter, including but not limited to the structure and organization of the National Labor Relations Board and the agency’s administrative law judges, is unconstitutional,” Murphy said.

“I’m certainly not going to be ruling on my own constitutionality anytime soon,” Muhl responded. “So you’ll have to take that up with the board and the federal courts.”

In a statement on the exchange, Connor Hovey, a worker at the unionized Trader Joe’s in Louisville, Kentucky, and TJU’s organizing director, said, “It’s appalling that while continually violating our rights as workers, Trader Joe’s is simultaneously attacking the very agency tasked to hold our employer accountable for their unlawful actions. This is dangerous. An attack on the NLRB is an attack on every worker in America.”

Employers vs. the NRLB

The NLRB administers the 1935 National Labor Relations Act (NLRA), a duty that includes overseeing union elections, investigating unfair labor practice complaints, and protecting private sector workers’ right to organize and communicate about their working conditions. Workers’ legal rights are woefully minimal and the NLRA’s enforcement mechanisms are inadequate — the debate over the Act’s contributions to stifling labor radicalism is a matter for another time — but when it comes to the rights workers do have, the NLRB is a means of enforcing them.

Employers have hated the law — which states that it is federal policy to encourage the “practice and procedure of collective bargaining” — from the very beginning. They waged an aggressive campaign against the Act, and upon its passage, many refused to recognize its legitimacy. But workers seized on the law to assert their power on the shop floor, and in 1937, the Supreme Court ruled 5-4 in favor of the board. Capitalists seethed, but the board’s standing was unambiguous. The bosses never stopped fighting it.

Still, the question remains: Why is Trader Joe’s, a company that profits from its liberal brand, now leading the charge? As TJU attorney Seth Goldstein told Bloomberg, “Customers of Trader Joe’s would have serious problems with a company that has rejected the New Deal.” Murphy accepted that the board’s case will proceed (unlike SpaceX, which has asked a federal judge to stop an NLRB trial against it from taking place), and stated that he was contesting the board’s constitutionality “for future briefing and argument,” but that’s merely a difference in strategy. It’s not unusual for an employer to seek to destroy a nascent union effort, but why get so far out in front and risk inciting backlash from your customers?

The answer is simple: the NLRB stands in Trader Joe’s way. For evidence, just review the board’s rulings in cases between Trader Joe’s and TJU since the union drive launched two years ago.

TJU’s founding members unionized their Hadley, Massachusetts, store in July 2022 by a vote of 45-31. Trader Joe’s then fired Steven Andrade, a pro-union Hadley worker who had been with Trader Joe’s for eighteen years. The company explained to Andrade that he was let go for failing to remove a power tool from the store’s premises, but as Hadley union members told me at the time, the tool in question did not belong to Andrade and predated his employment at the store. Andrade and his coworkers believe the firing was retaliatory.

The NLRB agreed. In December 2023, agency officials said the company should offer him reinstatement, back pay, and a letter apologizing for any harm done. In the same complaint against the company, the NLRB also found merit in claims that Trader Joe’s retaliated against union members in Massachusetts and Minnesota by providing them with smaller 401(k) contributions than their nonunion workers.

The adverse rulings against Trader Joe’s have become a near-constant affair.

In March 2023, the NLRB ruled that Trader Joe’s had illegally axed another worker, this time in Houston, Texas, for raising concerns about working conditions. The board ordered the company to rehire the worker with back pay. In May, the board issued a complaint against Trader Joe’s for removing union literature from the employee break room at a unionized Minneapolis, Minnesota, location.

Two months later, Trader Joe’s sued TJU for trademark infringement, taking issue with the union’s logo, which is designed to evoke Trader Joe’s branding. Hernán D. Vera, a judge for the US District Court of the Central District of California, threw the case out earlier this month. Of the company’s claim that customers might accidentally purchase union merchandise from the union website under the assumption that they were buying official Trader Joe’s merchandise, Vera judged it so ludicrous as to constitute an attempt to “weaponize the legal system” against TJU for the purpose of “gain[ing] advantage in an ongoing legal labor dispute.” Vera warned that Trader Joe’s litigation strategy came close to deserving sanction for its improper claims. (Another judge dismissed a similar case brought by Medieval Times against Medieval Times Performers United, the workers’ union at the company.)

Rolling Back the New Deal

If Trader Joe’s management can’t stand TJU, an independent union with scant resources, it’s no surprise that it took swift action to shut down another organizing drive by a better-resourced union.

On August 11, 2022, workers at the chain’s wine store in Lower Manhattan say that they were days away from going public with an organizing drive with the United Food and Commercial Workers International Union (UFCW), which represents more than eight hundred thousand grocery workers across the United States and Canada, when the company permanently shuttered the store. As one worker at the location told HuffPost at the time,“They’re hoping this dissuades other workers from doing the same thing we’ve done.” Trader Joe’s denied that the closure was related to the workers’ organizing, but earlier this month, the NLRB filed a complaint against the company alleging that the store’s closure was an illegal response to the union drive.

TJU has only been certified by the NLRB at four of the company’s roughly five hundred locations nationwide, which employ around fifty thousand people. Yet corporate cannot countenance workers’ assertion of their rights; the aggressiveness with which it has sought to crush employees’ efforts is proof of that.

Trader Joe’s hoped the board would dismiss the workers’ claims — the company clearly doesn’t take its workers’ grievances seriously, as many of TJU’s members have attested, so it didn’t expect anyone else to either. But much to corporate’s chagrin, the board has instead done what it was created to do: encourage collective bargaining by administering the NLRA. The company is breaking the law, and the NLRB has the independence to point that out.

So now, Trader Joe’s has joined the push to destroy it.