SpaceX CEO Elon Musk has an ally in Trader Joe's in the fight against the National Labor Relations Board. Alessia Pierdomenico/Bloomberg via Getty Images
Grocery chain Trader Joe's is joining Elon Musk's SpaceX in arguing that the U.S. Labor Department's prosecution of both companies is unconstitutional.
At a Jan. 16 hearing before the National Labor Relations Board in Connecticut, a lawyer for Trader Joe's told the judge reviewing the anti-union allegations against the company that the company wanted to make a new argument in its defense.
“The structure and organization of the National Labor Relations Board and the agency’s administrative law judges is unconstitutional,” the company’s attorney, Christopher Murphy, said, according to a transcript of the proceedings obtained by Bloomberg News through a Freedom of Information Act request.
Trader Joe's argument echoes that of Musk's aerospace company, which filed a lawsuit on Jan. 4 arguing that an NLRB case against it should be put on hold because the agency's structure violates the rules outlined in the Violates the “separation of powers” enshrined in the US Constitution. SpaceX filed its lawsuit a day after the NLRB complaint accused the company of unlawfully firing eight employees based on an internal letter that sharply criticized Musk. Trader Joe's embrace of the argument suggests it may soon become widespread in corporate America.
Trader Joe's, which has denied wrongdoing in the case, did not immediately respond to a request for comment. An NLRB spokesman declined to comment. An attorney for the agency, which accuses the grocer of illegal threats and retaliation against workers, said at the hearing: “We believe the NLRB and its administrative law judges are constitutional.”
Read more: Elon Musk hits back at NLRB in SpaceX lawsuit by filing lawsuit challenging federal agency's legitimacy
U.S. labor law protects workers' rights to organize and communicate about their working conditions, with or without a union. The same law tasks the NLRB with enforcing these protections. The agency includes regional officials who investigate and prosecute cases, administrative law judges who hold hearings and rule on allegations, and members of the Washington labor board who consider appeals of those judges' rulings.
Propagation attacks
Attacks on the NLRB's constitutionality are likely to continue to grow as the federal judiciary's rightward shift makes such arguments more forceful, said Catherine Fisk, a law professor at the University of California, Berkeley. After Congress created the NLRB in 1935, many companies refused to recognize its legitimacy until the U.S. Supreme Court ruled 5-4 in favor of the agency in 1937.
“It’s been on the books for almost 90 years now,” Fisk said. “The only thing that has changed is the makeup of the Supreme Court.”
The Trader Joe's United union, which has organized four of the company's locations in the past two years, said the company's new argument could harm its progressive branding. “Trader Joe's customers would have serious problems with a company that rejected the New Deal,” said union attorney Seth Goldstein.
While SpaceX has asked a federal judge to block an NLRB lawsuit from taking place against the company, Trader Joe's attorney said he understands the case against the grocer will continue for now. He said he was raising the issue of the agency's constitutionality “for future briefing and discussion.”
The agency judge handling the case, Charles Muhl, suggested that the matter could be left to NLRB members or federal judges after he makes a decision on the other aspects of the case and appeals. “I certainly won’t be deciding on my own constitutionality any time soon,” Muhl said.