Amazon Joins Elon Musk’s SpaceX In Mission to Destroy Federal Agency Protecting Workers

Amazon argued in a court filing on Thursday that the National Labor Relations Board is unconstitutional as part of an ongoing case against the company for retaliation against unionized workers. It is the third company to do so in recent months, joining Trader Joe’s and Elon Musk’s SpaceX. 

The NLRB is investigating numerous unfair labor practice charges against Amazon for its anti-union activity at JFK8, the famed Staten Island warehouse that became the first in the U.S. to unionize in 2022. Despite being certified by labor officials, the union has still not managed to bring Amazon to the bargaining table. The current case involves the allegedly illegal firing of union workers, retaliation against organizing activities, and unilateral changes made by management without negotiation.

Amazon, in response, argued that the NLRB’s actions and structure violate the Constitution’s separation of powers and Amazon’s due process rights under the Fifth Amendment. 

“The structure of the NLRB violates the separation of powers because its Administrative Law Judges are insulated from presidential oversight by at least two layers of ‘for case’ removal protection, thus impeding the executive power provided for in Article II of the United States Constitution,” Amazon’s Thursday filing stated. It said that the NLRB’s structure additionally violated Article II of the Constitution because its board members were “insulated from removal by the President except for inefficiency, neglect of duty, or malfeasance of office.” SpaceX made similar arguments in its lawsuit against the Board. 

Amazon argued that the NLRB’s structure also violated its due process rights under the Fifth Amendment because the board members “concurrently exercise legislative, executive, and judicial powers in the same administrative proceeding.” It also argued that NLRB proceedings violated Article III of the Constitution “by seeking to adjudicate private rights outside an Article III court and award a broader range of legal remedies beyond just equitable remedies without trial by jury.”

“This is a major attack on the American labor movement,” said Seth Goldstein, a lawyer at Julien, Mirer, Singla and Goldstein who represents the fired Amazon workers and has long worked with the Amazon Labor Union. “They want to knock down the whole process and make it impossible for us to organize, because if they're successful in what they're doing, the board won't be able to issue any decisions. They're going for everything. They think that Trump is going to get elected—this is what the 2024 election needs to be about.” 

During his presidency, Trump significantly undermined workers’ rights on multiple fronts.

Amazon also argues that the case should be dismissed because it “implicate[s] the Major Questions Doctrine,” a new principle followed by the current Supreme Court. Laura Phillips-Sawyer, a professor of law at the University of Georgia who studies antitrust, previously told Motherboard that this doctrine asserts that the court “can [and] will evaluate administrative rulemaking by agencies and determine if the promulgated rule falls within the authorities granted by Congress and the statute,” and that by virtue of the doctrine, “all rulemaking might be challenged.” 

Multiple legal experts have said that efforts to deem core governmental institutions like the NLRB or the Federal Trade Commission illegal have stemmed from the leanings of the current Supreme Court. Meta sued the FTC for being unconstitutional in November, in an attempt to stop the agency from blocking the company’s profits off of data collected from minors. It proposed arguments similar to those of Amazon and SpaceX. 

In addition to arguing that the NLRB is unconstitutional, Amazon denied many of the allegations made in the complaint. It argued that the relief requested by the union was “speculative, incalculable, would require the Board to dictate substantive terms of bargaining negotiations, [and] would compel Amazon to comply with contractual terms to which it did not agree.” 

Goldstein said that this was in relation to unilateral changes made by management at the warehouse, which the union had not been consulted about in advance. “The fact that they're suggesting collective bargaining negotiations when they refuse to bargain with us is absolutely insane,” he said.

The union also demanded that Amazon reinstate union members it had fired, to which Amazon responded that “the board is not empowered to substitute its judgment for Amazon’s lawful employment decisions.” 

“This is very, very damaging to collective bargaining, and I could see it having an effect on not just organizing first contracts, but also legacy contracts,” Goldstein said. “Because then, the employer can basically say, ‘I don’t need arbitration because there won’t be any board to worry about.’”

A trial on this case is scheduled for the end of February. Goldstein said it was possible that Amazon might follow SpaceX’s lead and file a preliminary injunction, instead of just arguing the NLRB’s unconstitutionality as part of its defense. Amazon wrote in its filing that it reserves the right to expand its argument during subsequent hearings.