Trader (Traitor?) Joe's is going full 19th Century unregulated capitalism on us:
Trader Joe’s is facing a litany of union-busting charges before the National Labor Relations Board. The agency’s prosecutors have accused the company of illegally retaliating against workers, firing a union supporter and spreading false information in an effort to chill an organizing campaign.
But in a hearing last Tuesday, the grocer’s attorney briefly summarized a sweeping defense it intends to mount against the charges: The labor board itself, which was created during the New Deal and has refereed private-sector collective bargaining for nearly 90 years, is “unconstitutional.”
The argument would appear to fit inside a broader conservative effort to dismantle the regulatory state, which has taken aim at agencies tasked with enforcing laws to protect workers, consumers and the environment.
The exchange, a transcript of which HuffPost obtained through a public records request, came at the start of a trial to determine whether Trader Joe’s violated workers’ rights. Trader Joe’s’ attorney, Christopher Murphy of the law firm Morgan Lewis, informed the judge, Charles Muhl, that there was “one final thing” the grocery chain wanted to add to its defense before proceedings began.
“The National Labor Relations Act as interpreted and/or applied in this matter, including but not limited to the structure and organization of the National Labor Relations Board and the agency’s administrative law judges, is unconstitutional,” Murphy said.
Fortunately, the judge (being a rational person) isn't going to be ruling on the Trader Joe's lawyer's claim, which seems to be part of a broader push by right- wingers in general and a certain Master of the Universe in particular:
Trader Joe’s does not appear to have expanded on the defense yet during trial, and there are no briefs yet laying out its logic. But the company may be using an argument similar to one recently made in federal court by SpaceX, Elon Musk’s rocket company, which NLRB prosecutors have also accused of labor law violations.
SpaceX claims that the NLRB violates the constitutional separation of powers as well as the right to due process, calling the board “the very definition of tyranny,” as Politico recently reported.
Like Trader Joe’s, SpaceX is represented by Morgan Lewis. The firm is known for its management-side work helping employers battle unions. Some of its highest-profile attorneys came out of the NLRB and served as conservative board members.
Here's what the NLRB has been doing for most of its nearly 90 years in existence:
The NLRB is an independent federal agency that was created to protect workers’ rights and foster labor peace. It has both a prosecutorial office, which brings cases against employers and unions, and a 5-member board, which interprets the laws governing bargaining in the private sector. The agency’s administrative law judges issue rulings that can be appealed to the 5-member board for review.
The agency’s constitutionality was upheld by the Supreme Court in 1937, two years after it was created. However, these days, the court’s conservative supermajority has been chipping away at the regulatory state. (SpaceX’s claims track with some of the arguments made in a case involving the Securities and Exchange Commission that’s currently before the Supreme Court, SEC v. Jarkesy.)
The attorneys representing Trader Joe's union wonder if the company knows who its legal and political bedfellows are; we think it would be hard to believe they don't. But, it's puzzling because they're *generally perceived* as consumer-sensitive and -friendly, and more left of center than not, contributing far more to Democrats than Republicans in every election cycle since 2004. But, rather than speculate on motives or tactics, actions speak louder than words, an idiom that applies not just for Trader Joe's management, but for its customers as well. Costco anyone?
(Photo: Trader Joe's unionized employees in Lousiville, KY / Trader Joe's United via X/Twitter)
