AMAZON, US grocery chain Trader Joe’s and Elon Musk’s SpaceX, a defence, space craft and satellite manufacturing company — three companies with records of anti-union activity and which face accusations of labour law violations — are attempting to have the entire US system by which workers can seek to secure union rights ruled unconstitutional.

The National Labour Relations Board (NLRB), while cumbersome and subject to abuse by anti-union employers, was set up by the 1935 Wagner Act. This was amended in 1947 through the Taft-Hartley Act (which weakened the law) and in 1959 through the Landrum-Griffin Act.

The main functions of the NLRB are to decide, when petitioned by employees, if an appropriate bargaining unit of employees exists for collective bargaining; to determine by secret-ballot elections (conducted by the NLRB) whether the employees in a business or industry wish to be represented by labour unions; and to prevent or correct unfair labour practices by employers and unions. The US president appoints the five board members and the board’s general counsel.

In an effort to block successful union organising campaigns at its fulfilment sites in the US, Amazon claims that the NLRB’s structure is unconstitutional because administrative law judges are “insulated from presidential oversight,” thus violating the separation of powers. 

The company also argues against the structure of NLRB itself, as well as its ability to fine a company for unfair labour practices after a hearing, rather than a full jury trial.

Like other federal agencies, the NLRB is shaped by the US president. Under Joe Biden, the NLRB has been more pro-worker. 

But with the prospect of a Trump administration, US unions now see the attacks on the NLRB as a real threat as they gear up for major organising campaigns, notably in the auto sector.

SpaceX sued the NLRB in early January this year, arguing that the structure of the agency is unconstitutional. The lawsuit came a day after the NLRB accused the company of unlawfully firing employees who wrote an open letter critical of Musk and of creating the impression workers were under surveillance.

At a January labour board hearing over allegations that Trader Joe’s retaliated against union activism, a lawyer for the grocery chain said the NLRB and its panel of administrative law judges were structured unconstitutionally.

However Seth Goldstein, the legal counsel for Trader Joe’s United and the Amazon Labor Union (US unions sometimes organise via company or site-wide independent unions) said the claim that the NLRB was unconstitutional was “a crock of shit. I don’t believe any of it, and I think it’s just a cover to bust unions.”

In Britain Amazon is the focus of a major organising campaign by GMB in Coventry and Birmingham.

Musk is currently in the midst of long battle with the Swedish union IF Metall over legal rights to collective bargaining and union recognition at his Tesla e-vehicles maintenance sites, and he also faces problems with IG Metall in Germany over union recognition at Tesla’s manufacturing site in Brandenburg. 

Tony Burke is the co-chair of the Campaign For Trade Union Freedom.