The NLRB is Essential for a Fair Transition to a Green Economy
Following an increase in labor action, coupled with growing public support for unions, high-profile companies are now crafting extreme, anti-labor legal positions after their employees have voted to unionize or when the employers have been charged with violating federal labor law. SpaceX, Trader Joe’s, Amazon, and the ACLU have all recently expressed legal challenges regarding the validity of U.S. labor law as carried out by the National Labor Relations Board (NLRB), specifically stating in both administrative hearings and in federal lawsuits that they believe various aspects of the Board’s administrative function and processes are unconstitutional. The effort to dismantle the NLRB serves to weaken worker protections and threatens the fair transition to a green economy.
The NLRB, created during the New Deal era, is an independent federal agency that protects employees’ collective action and union efforts, facilitates union elections, and inspects and remedies unfair labor practices committed by employers and unions. A five-member, presidentially appointed body called The Board, co-governs the NLRB along with a presidentially appointed General Counsel. The Board decides cases based on administrative proceedings, while the General Counsel is responsible for investigating and prosecuting unfair labor practices and supervising the field offices that process cases. The agency’s decisions and directives are limited to the scope of the National Labor Relations Act (NLRA) and are subject to review by the federal judicial system. The NLRA and the NLRB cover most private-sector workplaces in the U.S., regardless of the presence of a union. The U.S. Supreme Court has upheld their validity since 1937, (1) and this system has been essential in protecting employees' right to join a union and negotiate strong collective bargaining agreements.
The ACLU, Amazon, SpaceX, and Trader Joe’s have voiced a variety of anti-NLRB concerns. One example is the argument that President Biden was not authorized to remove the previous NLRB General Counsel from the position, hence in these organizations’ opinions, the current appointee in the position lacks authority to carry out the duties of their job, including directing the investigation of unfair labor practices (2). However, this new wave of opposition to the administrative function of the Board, mirrors broader constitutional challenges to the administrative and regulatory power of the federal government. Over the past few years, the Supreme Court has heard a variety of challenges to, has significantly limited, and has additional opportunities to further limit the regulatory power of administrative agencies, including the Environmental Protection Agency, the Securities and Exchange Commission, and the Consumer Financial Protection Bureau, and to the nearly 4 decades old Chevron deference doctrine (3). The intense opposition to the NLRB also comes at a time when the Board has notably issued decisions that expand employee and union protections. The issues raised by the ACLU, Amazon, SpaceX, and Trader Joe’s underscore their opposition to their own workers’ collective action, but continue this alarming trend and have the potential to undermine the future of U.S. labor law and protections. In fact, the NLRB is essential to the transition to a green economy and creating a more just and fair economy as the country tackles the dual crises of climate change and inequality. Undoing the NLRB and federal labor protections not only threatens workers, but also the entire U.S. clean energy economy.
A fair and equitable transition of the economy will only happen when workers have a voice in the process. Unions are essential for uplifting workers’ voices and collective power. The vision for a green economy is not just about reducing greenhouse gas emissions, it is about creating long-term peace and sustainability and correcting issues of systemic inequality that have long contributed to economic, health, and social disparities. A worker-centered green economy will establish healthier communities with family-sustaining wages, strong collective bargaining and community benefits agreements, safe workplaces, and workforce development programs. All of these are affected by - and hinge on - the rights of workers to participate in collective action, join a union, and have a collective voice. Labor law and the NLRB are essential to protecting the democratic ideals that unions promote and lead to stronger, healthier communities.
_______________________
1. National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937).The Court held that an employer cannot discriminate against employees for union action and upheld the National Labor Relations Act due to its significant direct or indirect impact on interstate commerce
2. Both the 9th Circuit and 5th Circuit Courts of Appeals have already rejected these specific claims in separate cases.
3. West Virginia v. Environmental Protection Agency, 597 U.S. __ (2022) limited the EPA’s regulatory power over the energy industry. Sackett v. Environmental Protection Agency, 598 U.S. __ (2023) limited the definition of wetlands for the purpose of the EPA’s regulation of water pollution. The consolidated case Ohio v. Environmental Protection Agency (2024) is currently being decided by the U.S. Supreme Court, which took the case on an emergency application, could limit the EPA’s plan to direct polluters to cut ozone pollutants that drift into other states. Loper Bright Enterprises v. Raimondo (2024) and Relentless, Inc. v. Department of Commerce (2024) are both cases where the Supreme Court Justices must decide whether the Chevron deference doctrine, which upholds administrative agencies’ regulatory powers and ensures that courts defer to relevant agencies for guidance when legislation from Congress is vague, is constitutionally sound. Seila Law v. CFPB, 590 U.S.__(2020) rejected the independent status of the CFPB director and now CFPB v. Community Financial Services Assn. of America (2024) will consider if the funding of the Bureau through the Federal Reserve violates the appropriations clause of the constitution. Securities and Exchange Commission v. Jarkesy (2024) will determine if the statutory creation of the commission violates the 7th amendment guarantee of a jury trial, the nondelegation doctrine, or Article II of the U.S. Constitution, particularly after the 5th Circuit ruled the use of proceedings before administrative judges chosen by the agency violates the respondent’s right to a trial by jury.
