In the latest sign of a growing backlash within corporate America against the 88-year-old federal agency that enforces labor rights, Amazon argued in a legal filing Thursday that the National Labor Relations Board was unconstitutional.
The move followed a similar argument by SpaceX, the rocket company founded and run by Elon Musk, in a legal complaint in January, and by Trader Joe’s during a labor board hearing a few weeks later.
The labor board consists of a prosecutorial arm, which issues complaints against employers or unions deemed to have violated federally protected labor rights. administrative judges, who hear complaints; and a five-member board in Washington, where decisions can be appealed.
Amazon’s filing was part of a case before an administrative law judge in which union prosecutors accused Amazon of illegally retaliating against workers at a Staten Island warehouse known as JFK8, which was created two years ago.
The company’s lawyers repeatedly denied in their filing that Amazon had broken the law. Then, in a section titled “Other Defenses,” they argued that “the structure of the NLRB violates the separation of powers” by “preventing the executive power provided for in Article II of the United States Constitution.”
The company also argued that the board or its actions or procedures violated Articles I and III of the Constitution, as well as the Fifth and Seventh Amendments — in the latter case because, according to the filing, board hearings can to seek remedies beyond those permitted without a jury trial.
Amazon declined to comment.
The claims he made in the filing echo arguments SpaceX’s lawyers made in a federal lawsuit last month after the labor union issued a complaint accusing the company of illegally firing eight employees for criticizing Mr. Musk. SpaceX sued in Texas, but a federal judge there accepted the board’s motion to transfer the case to California, where the company is headquartered.
In a statement, the board’s general counsel, Jennifer A. Abruzzo, said: “I am pleased that SpaceX’s blatant forum shopping efforts in Texas seeking to enjoin the agency’s action against it have failed.”
Wilma Liebman, chairman of the labor board under President Barack Obama, called Amazon and SpaceX’s arguments “radical,” adding that “the constitutionality of the NLRB was settled almost 90 years ago by the Supreme Court.”
The arguments appear to align with a broader conservative effort to challenge the constitutionality of a variety of regulatory actions, some of which have resulted in cases before the Supreme Court.
In January, the Supreme Court also agreed to hear a case brought by Starbucks challenging a federal judge’s order to reinstate workers fired during a union campaign. The outcome of the case could curb the labor council’s longstanding practice of seeking reinstatement from workers while their cases are being heard, a process that can take years.
