Trader Joes Attorney Argues National Labor Relations Board Is Unconstitutional

Trader Joes is facing a litany of union-busting charges before the National Labor Relations Board. The agencys 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 grocers 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 Joes violated workers rights. Trader Joes 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 agencys administrative law judges, is unconstitutional, Murphy said.

Murphy added that the company was making the affirmative defense now so that it could argue it in full later. The companys defense was first reported by Bloomberg .

The judge said he would allow it into the record, but left it at that.

Im certainly not going to be ruling on my own constitutionality anytime soon, he deadpanned. So youll have to take that up with the board and the federal courts.

Trader Joes 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 Musks 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 Joes, 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. 

A Trader Joes spokesperson did not immediately respond Friday when asked for comment.

Seth Goldstein, an attorney for Trader Joes United, the union thats accused the grocer of illegal retaliation, told HuffPost he finds it disturbing that the idea of dismantling the NLRB has been mainstreamed. He said the argument would align Trader Joes with right-wing ideologues . 

I see something really insidious here, said Goldstein, whos with the firm Julien, Mirer, Singla and Goldstein. Is Trader Joes onboard with what their law firm is doing?

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 agencys administrative law judges issue rulings that can be appealed to the 5-member board for review.   

The agencys constitutionality was upheld by the Supreme Court in 1937, two years after it was created. However, these days, the courts conservative supermajority has been chipping away at the regulatory state. (SpaceXs claims track with some of the arguments made in a case involving the Securities and Exchange Commission thats currently before the Supreme Court, SEC v. Jarkesy .)

Both employers and unions have plenty of gripes about the NLRB and board processes. But a determination that the NLRB itself is unconstitutional could throw labor relations into turmoil. Goldstein said the argument signals to Trader Joes workers that the company believes our members dont have the right to organize at all.

This is really dangerous, Goldstein said. Are we really going back to 1920?