On Wednesday, the NLRB issued a complaint against SpaceX alleging that the company violated federal labor law by firing eight workers who wrote a letter critical of CEO Elon Musk. It wasn’t a particularly unusual complaint, especially by the current labor board’s standards. The proposed penalties were actually very minimal — the NLRB wants SpaceX to read a notice to employees, put up a poster that lists employees’ rights, undergo a training for management, and apologize to the impacted workers.
Yet Musk, who has been openly anti-union for years, responded to the proposed slap on the wrist with a nuclear missile, filing a lawsuit aimed at stripping the agency of nearly all of its power. Specifically, the suit alleges that NLRB’s system of internal courts, which adjudicate cases brought by the board’s lead prosecutor, exceed the agency’s constitutional authority. This is far more dangerous than it sounds.
It’s the same argument that was recently presented to the Supreme Court in Jarkesy v. SEC, a lawsuit challenging the constitutionality of the SEC’s own enforcement mechanisms. The case, brought by a conservative talk radio host who was fined $300,000 for bilking investors in his failed hedge funds, should have never gotten this far given the decades of cases precedent. But the judiciary is now stocked with judges incubated at the Federalist Society, the reactionary legal organization funded by conservative billionaires and corporations.
The high court, which heard oral arguments in late November, was quite amenable to attack on the regulatory body, and is seen as likely to at least diminish the power of the SEC’s administrative law courts. Instead of trials overseen by expert judges, they would reroute complex cases to federal courts, which are largely run by conservatives driven by ideology, not the law.
Musk’s lawsuit builds on this case, and depending on the Supreme Court’s decision in Jarkesy, the new precedent may give the richest man in the world may be given carte blanche to harass, fire, and otherwise block his workers’ from exercising their constitutional right to organize. That, naturally, falls under the First Amendment, but don’t tell that to “free speech absolutist” Elon Musk.
We’re looking at what could be an existential blow to an NLRB that’s been recently revived and returned to its intended role as an advocate for workers. General Counsel Jennifer Abruzzo has been aggressively pushing to overturn anti-union precedents that stripped the board of its power to force employers to recognize unions and dole out meaningful fines for illegal firings. The flurry of enforcement activity has helped to encourage more militancy among workers and driven new industries to organize.
I’ve been told that Abruzzo is also working on a proposal that would force corporations like Amazon and Starbucks to stop indefinitely dragging out contract negotiations, which would be another huge boon to organizers.
Those companies are already suing over the various decisions made by the labor board’s administrative law judges, but winning an appeal after an extensive trial is far more difficult than starting fresh in front of judges who don’t understand what they’re hearing. Labor violations would likely skyrocket, and as other agencies are gutted, regulation of business would reach new lows.
It wouldn’t just be workers seeking a union that would be in the crosshairs, either. Should both Jarkesy and Musk’s case return maximum impact for conservatives, the entirety of administrative and regulatory state could wind up hollowed out. Corporations (and the Wall Street Journal) have obsessively tried to bring down FTC chair Lina Khan both in unhinged public diatribes and lawsuits challenging her authority to enforce the law. The Supreme Court has already partially gutted the EPA of its enforcement capability, and polluters would have further ammunition to try to finish the job.
There are over 2000 administrative law judges in the federal government because the executive branch is the prime enforcer of so many regulations and laws that are meant to protect workers, consumers, and patients. Elon Musk and his fellow conservatives hate the idea of accountability or rules around how they treat people, and they’re willing to dismantle the structures of our society to avoid having to listen to criticism or pay people a few bucks an hour more.
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