(CN) — The country’s two richest men are quietly pressing what could be the biggest labor-law issue of the 21st century — a claim that the National Labor Relations Board is unconstitutional. And a Supreme Court case expected to be decided in the next two months could give a green light to the theories underlying this claim, throwing an enormous monkey wrench into labor relations both in workplaces that have a union and in those that don’t.
“We’ve never had anything like this before in our history,” said Kate Bronfenbrenner, director of labor education research at Cornell University’s School of Industrial and Labor Relations.
“The modern American economy is a product of the NLRB,” said Noah Rosenblum, a professor at New York University’s law school. Undoing it would be “a massive change to our political economy.”
The current conservative Supreme Court is likely to agree with the theories, Bronfenbrenner believes. And if the board is no longer able to adjudicate labor disputes, “the courts will be completely clogged. Nothing will be enforced because everything will be tied up in the courts.”
The legal theories are “much stronger than most people think,” agreed Ilan Wurman, a law professor at Arizona State University who specializes in constitutional issues in administrative law.
Before President Trump reshaped the court, these theories would have been “laughable,” said Rosenblum. But now, “we have to take them seriously.”
Amazon and SpaceX — whose founders Jeff Bezos and Elon Musk are ranked by Forbes as the two wealthiest people in America — are leading the attacks on the labor board. Starbucks and the Trader Joe’s grocery chain are raising similar claims.
Federal court cases like those of Amazon and SpaceX normally take years to work their way through the system, but a little-noticed Supreme Court case expected to be decided in June raises very similar arguments concerning enforcement actions by the U.S. Securities and Exchange Commission. If the SEC loses that case, it could force lower courts to immediately apply the ruling to the labor board — and throw employment relations throughout the U.S. into chaos.
Created in 1935, the National Labor Relations Board oversees union elections, which have increased 26% in the past four years to more than 2,100 in fiscal 2023. The agency also adjudicates between 20,000 and 30,000 claims of unfair labor practices each year, which can involve employees’ rights to communicate and seek workplace changes even in companies that don’t have a union.
The board consists of three parts: a general counsel who functions as a prosecutor of labor-related claims; administrative law judges who rule on these claims; and a five-member board to whom the judges’ decisions can be appealed.
Board decisions can be appealed to a federal appeals court. Members of the board can be removed during their terms only for good cause.
The U.S. Supreme Court upheld the agency in a 5-4 ruling back in 1937, primarily against a complaint based on the commerce clause. But shifting legal sands in recent years have made new challenges viable, Wurman said.
One of those challenges is that the national board system violates the Seventh Amendment, which guarantees a right to a jury in civil cases.
The Seventh Amendment doesn’t apply to all civil disputes, only those that involve private rather than public rights — those created by government itself, such as an entitlement to welfare or Social Security benefits. People who raise claims involving such issues can be denied a jury. The argument against the board is that labor relations involve private rights, and therefore a hearing before an administrative judge without a jury isn’t good enough.
