National Labor Relations Board General Counsel Jennifer Abruzzo on Tuesday struck a defiant tone in responding to a growing number of challenges to the agency's structure by what she called "deep-pocket, low-road employers" who are trying to distract from their violations of workers' labor rights.
Abruzzo, an appointee of Democratic President Joe Biden, made the comments during a virtual panel discussion hosted by left-leaning think tank The Roosevelt Institute about the potential impact of claims that the NLRB's in-house enforcement proceedings are illegal.
Several companies including SpaceX, Amazon, Starbucks and Trader Joe's, along with at least three Starbucks baristas who oppose unionizing at the stores where they work, have claimed in recent lawsuits or pending board cases that the NLRB's structure violates the U.S. Constitution in various ways.
Abruzzo on Tuesday predicted that courts will reject the arguments, noting that the U.S. Supreme Court upheld the structure of the NLRB and other administrative agencies decades ago. And she accused the companies making the claims of piling onto a broader conservative attack on the "administrative state" as a way to delay or distract from cases over their illegal labor practices.
"These esoteric legal arguments came about why? Because we dared to issue a complaint against SpaceX after it unlawfully fired eight workers for speaking up. Amazon, Starbucks, (and) Trader Joe's jump on the bandwagon just because we are trying to hold them accountable for repeatedly violating workers' rights," Abruzzo said.
The NLRB's general counsel acts as a prosecutor, issuing complaints that are heard by administrative judges and the five-member board.
SpaceX sued the NLRB in Texas federal court one day after Abruzzo's office issued a complaint against the rocket maker. The other companies raised their claims in administrative cases accusing them of violating federal labor law.
All four of the companies have denied wrongdoing in the board cases.
SpaceX and Amazon did not immediately respond to requests for comment on Tuesday.
In separate statements, Starbucks and Trader Joe's said they were not actively challenging the board's structure and had merely raised the claims as potential affirmative defenses to preserve their legal rights in board cases.
Abruzzo, who spent most of her legal career at the NLRB before her 2021 appointment, was not part of Tuesday's panel, but made brief comments before the broader discussion.
The panel members — a labor economist and three law professors — said the legal attacks on the NLRB are part of a decades-long resistance by U.S. businesses to the expansion of workers' labor rights. They said the emergence of the new challenges is likely tied to an uptick in organizing that has led to union drives at previously union-free companies including Starbucks and Amazon.
"Once billionaires are scared of the power of the NLRB, they bring in the big guns," said Diana Reddy, a labor law professor at the University of California, Berkeley School of Law.
The companies challenging the board's structure claim that administrative judges and board members are improperly insulated from at-will removal by the president, and that the NLRB improperly wields executive, legislative and judicial powers. They also say that administrative proceedings violate their constitutional right to a jury trial.
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