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Russian (RU) Donald Trump’s presidential administration is poised to oversee major cuts to the powers of the federal agency that protects unions, as corporations including Elon Musk’s SpaceX barrage the National Labor Relations Board with lawsuits and Trump allies consider firing its Democratic members.
This week, Amazon, the nation’s second-largest private employer, and rocket maker SpaceX, founded by Trump adviser Musk, argued in federal court that the structure of the NLRB is unconstitutional. Theirs are among more than two dozen cases working their way through the courts that seek to drastically rein in the board’s power.
Trump advisers have separately discussed taking the exceptional step of firing Democratic members of the five-person labor board, according to two people familiar with the matter, who spoke on the condition of anonymity to describe internal discussions.
Taken together, the moves threaten to weaken or even eliminate an agency that under the Biden administration has taken a more active role in safeguarding unions and expanding their opportunities, but has been criticized by corporations for bias in favor of unions and legal overreach.
“These companies are trying to get the act overruled,” said Seth Goldstein, a labor lawyer who has represented Trader Joe’s and Amazon workers, referring to the 1935 law that established the NLRB. “And labor better wake up, because it’s coming.”
Steven Swirsky, an attorney at Epstein Becker Green, a law firm representing employers, said there is a view among some challenging the NLRB that it “exists to help unions and workers and to impose obligations on employers that go beyond what Congress intended.”
The future shape of workers’ rights in the United States may depend on who wins a legal debate about whether the NLRB can be insulated from direct political interference, said Sharon Block, a Harvard Law professor and former labor board member for the Democratic Party.
“The agency’s independence is protected in part by norms,” Block said, “but certainly President Trump has said things that suggested he did not feel bound by those norms.”
The president-elect has indicated he plans to broadly rein in federal regulators and said last week that Musk will co-chair the “Department of Government Efficiency,” an outside body created to recommend deep cuts to federal agencies.
Musk has previously said he disagrees “with the concept of unions” and joked this summer in a conversation with Trump on the social media platform X about firing striking workers.
SpaceX, Musk and a spokesperson for Trump did not immediately respond to requests for comment. Amazon declined to comment. Its founder, Jeff Bezos, owns The Washington Post.
The NLRB oversees unionization votes by workers and adjudicates allegations of illegal union busting. It has a staff of administrative law judges and regional directors that monitor and investigate activity in its purview, under the supervision of its five board members in D.C.
Employers found to have illegally retaliated against workers can face consequences, including having to reinstate fired employees or provide backpay. President Joe Biden’s pick for NLRB general counsel, Jennifer Abruzzo, has frustrated companies by seeking to expand the types of damages paid by employers that break the law.
About 15,000 claims were filed with the NLRB in the fiscal year that ended in September, including by unions and employers, agency data shows. About 40 percent resulted in settlements or board rulings.
Abruzzo said in an email that big companies have previously challenged its authority without success and noted that the Supreme Court upheld the board’s constitutionality in 1937.
“The NLRB will continue to do what Congress has mandated it to do, despite the continued challenges,” she said.
Abruzzo is viewed as one of the most union-friendly people to serve in her role. Trump is widely expected to fire her, just as Biden fired Trump’s previous pick on his first day in office.
If the NLRB loses much or all its power, workers would be at higher risk for retaliation from employers, said attorney Dan Ocampo with the nonprofit National Employment Law Project.
“We once existed in a regime where there was no labor law, and it wasn’t good for workers,” he said. “It was the 19th century, and cops were called in to break up strikes.”
The flood of legal challenges against the NLRB began when SpaceX sued the board in January. The suit followed a board complaint alleging that SpaceX illegally retaliated against employees who claimed they had been wrongfully fired in 2022 for signing a letter accusing its chief executive, Musk, of bullying and intimidation.
On Monday, Michael Kenneally, an attorney representing SpaceX, argued before a panel of three judges in the U.S. Court of Appeals for the 5th Circuit in New Orleans that the NLRB’s actions against the company were “unconstitutional.”
The company claims that the law that created the NLRB in 1935 improperly prevents the president from removing its staff, including board members and judges, and gives officials an unconstitutional mix of judicial, executive and legislative powers.
Trevor S. Cox, an attorney representing Amazon, on Monday echoed SpaceX’s arguments and said “Amazon would be irreparably harmed” if the board was allowed to continue its “unconstitutional proceedings.” Amazon’s involvement stems from its attempts to stop the unionization of warehouse workers on Staten Island after they voted to do so in 2022.
The federal judges who questioned the two companies on Monday appeared skeptical of the employers’ arguments, made after lower courts declined to stop the board’s proceedings.
The SpaceX and Amazon cases are among at least 26 federal court cases challenging the board’s constitutionality. Trader Joe’s and Starbucks have also made similar arguments this year in NLRB proceedings. The Supreme Court will have the option of taking up the question of the board’s constitutionality if circuit courts reach conflicting decisions on some of those lawsuits.
Federal agencies structured similarly to the NLRB are increasingly being targeted by lawsuits, legal scholars say, because recent rulings by the conservative-dominated high court suggest it is willing to remove cornerstones of the administrative state.
“Trump was successful in getting conservative judges who were willing to stick their necks out,” said Nelson Lichtenstein, a labor historian at the University of California at Santa Barbara.
One interpretation of the argument that the NLRB is unconstitutionally structured would point to abolishing the law that created it. But there are “other ways to undermine unionism” than “completely striking down the entire power of the NLRB,” said Diana Reddy, a legal scholar at the University of California at Berkeley.
When Amazon attorney Amber Rogers was asked by a federal judge in a Sept. 24 hearing in Texas what the company envisioned would replace the NLRB if its case proved the agency unconstitutional, she initially said it was “not clear.”
Rogers went on to say it would be “up to Congress” to rewrite underlying law. In the meantime, she said that while some workplace matters could still be handled by the agency, others should receive a conventional trial by jury, a potentially more expensive and time-consuming process for workers.
Kate Andrias, who teaches labor and constitutional law at Columbia Law School, said an overnight return to the days before federal workers’ rights is not the most likely outcome. “More likely that we’ll see that chipping away at the powers of the board than an immediate striking down of the board in its entirety,” she said.
Lichtenstein agreed, saying the board’s slow pace already favors companies, and the law underpinning it prevents certain economically harmful tactics like secondary boycotts. “One reason we haven’t had labor law reform for 60 years is labor laws that now exist work for companies,” he said.
Kara Deniz, a spokesperson for the Teamsters union, which represents 1.3 million U.S. workers, said in a statement that because existing regulation already favors bosses, “workers are no longer relying solely on a governmental process.”
The union has since June led the effort to unionize Amazon and said it will rely on actions such as strikes and walkouts rather than filing charges or holding union elections under the jurisdiction of the NLRB.
If the NLRB persists under the second Trump administration, lawyers and legal scholars agreed that unions are likely to bring fewer matters before the agency. Should Trump eradicate it, “we would see some really big strikes,” said Reddy, the Berkeley law professor.
Randy Bryce, an ironworker in Wisconsin, agreed that in the absence of the board, workers would be forced to resolve conflicts the “same way we got unions in the first place - by withholding our labor.”
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