MULTIBILLIONAIRE Elon Musk won and workers lost as a three-judge panel of the Fifth US Circuit Court of Appeals ruled the National Labour Relations Board’s structure is unconstitutional.

If upheld, the August 19 decision, authored by Donald Trump-named appellate Judge Don Willett, throws US labour law up for grabs.

Willett’s ruling was approved 3-0 by a panel of three Republican-named judges. It leaves unanswered the question of what comes next.

If the decision stands, the US could return to the Wild West days of widespread and sometimes violent corporate repression of workers, reminiscent of the 1930s.

But by ruling the NLRB’s make-up, and that of its administrative law judges, unconstitutional, the ruling also could set workers free from the corporate-created obstacle course unions must hurdle to win recognition and achieve first contracts.

Congressional Republicans and federal judges, at corporate behest, have erected that legalistic maze against union organising and tactics since 1947.

The probability that Musk eventually triumphs is high. Judge Willett specifically noted that on March 5, the Justice Department abandoned defence of the NLRB’s administrative law judges, and of the board itself–after Republican anti-worker President Donald Trump took power.

Musk brought the case, and won in US District Court in rural and deep-red Texas, before a Trump-named judge there. Then, the Democratic Biden administration was still in power and it took the case higher up. Trump named two of the three appellate judges, including Judge Willett. Republican president George W Bush named the other.

Two other employers also contended the NLRB was unconstitutional and the New Orleans-based appellate panel, one of the most right-wing courts in the country, rolled all three together.

“These disputes do not implicate wages, hours, working conditions, or even union representation. They have nothing to do with employee boycotts, union organisation, or labour strikes,” Judge Willett declared.

“Nor do the employers seek to block the board from adjudicating any particular unfair-labour-practice charge. Rather, the claims concern the separation of powers” in the US constitution.

“The employers challenge the structure of the board itself — specifically, whether its members and administrative law judges are too insulated from presidential removal.” They are, and that makes the NLRB unconstitutional, the appellate court ruling says.

“Administrative law judges may be removed only ‘for good cause’,” and are insulated from arbitrary firings, Judge Willett added. That’s too limiting, the ruling declares.

Musk’s SpaceX and the other two firms involved committed unfair labour practices — the formal name for labour law-breaking. SpaceX fired workers who stood up for themselves, in this case over severance pay, or lack of it.

The other two firms broke labour law for other reasons. But all said the shielding of the administrative law judges from presidential firing is unconstitutional, and thus so is the entire NLRB structure. They sought and got preliminary injunctions from federal courts in deep-red rural Texas.

Willett’s ruling in the appellate court upheld the injunctions, sided with Musk and said his firm and the others would suffer “irreparable harm” if they had to obey rulings from unconstitutionally protected administrative law judges.

“ALJs are inferior officers insulated by two layers of for-cause removal protection — an arrangement the Supreme Court and this circuit have both held unconstitutional,” Judge Willett declared.

The employers sued “for declaratory and injunctive relief against” the NLRB because the board is “presently pursuing an unconstitutional administrative proceeding against them.”  

Neither Musk nor unions had any immediate comment on the Fifth Circuit’s decision.

This article is republished from peoplesworld.org.