RETURNING TO 1937?

So much for the legal concept of “Stare Decisis.” Today’s Robber Barons - Jeff Bezos and Elon Musk - are traveling full stream ahead back to 1937, in a rush to destroy the National Labor Relations Act, under which their employees have had tHe temerity to try to rein them in before they destroy the country. That the two are among the leading pigs of American Revanchist Capitalism is no surprise, nothing new here.

But what is new is that everybody here is going to have to rethink their relationship with Trader Joe’s.

From the outset of his presidency, FDR had known that four of the justices—Pierce Butler, James McReynolds, George Sutherland and Willis Van Devanter—would vote against his new programs and policies. This led to the attempt by FDR to “pack the court” by targeting the justices over 70 and writing regulations that 70 was the court’s retirement age. The court had shown they were willing to go against the president when they found the National Recovery Act unconstitutional in Schechter Poultry v. United States, which struck down the Act.

After he was re-elected, FDR proposed the Judicial Procedures Reform Bill of 1937, which would allow the President to appoint an additional justice for every sitting justice who was over 70 years of age, Roosevelt could add six of his own justices to the court. With two liberals already on the bench, that would put the odds in FDR’s favor. He used one of his famous “fireside chats” via radio on March 9, 1937 to make his case to the American people. It was FDR’s attempt to ensure the court would rule favorably about upcoming cases on Social Security and the National Labor Relations Act.

The plan met strong public opposition and was essentially dead by the summer of 1937. At the same time, a key conservative justice, Willis Van Devanter, decided to retire. FDR appointed Hugo Black to take his place. Also in the 1937 term, Associate Justice Harlan Stone began voting with the court liberals.

During his twelve years in office, President Franklin D. Roosevelt appointed eight new members of the Supreme Court of the United States: Associate Justices, Stanley F. Reed, Felix Frankfurter, William O. Douglas, Frank Murphy, James F. Byrnes, Robert H. Jackson, and Wiley Blount Rutledge. Additionally, he elevated sitting Justice Harlan F. Stone to chief justice.

During the 1937 term, the US Supreme Court upheld the NLRA in the landmark 5-4 ruling in NLRB v. Jones & Laughlin Steel Corp. In that case, the justices ruled that the most fundamental legislative works of Franklin Roosevelt’s presidency - Social Security and the National Labor Relations Act - were constitutional.

The decision was written by Chief Justice Charles Evans Hughes, who had been the Republican candidate for president in 1916, and had led the court’s resistance to the New Deal. From this decision - which saved seniors from destitution and enabled workers to form unions - a broadly shared prosperity emerged that gave the nation a middle-class majority for the three decades after World War II.

But as we know, with the modern American right, nothing is ever “settled law” until it’s settled the way they want.

Trader Joe’s started the ball rolling, arguing in an administrative law hearing that the NLRB, which is prosecuting it for unfair labor practices is unconstitutional.

The NLRB alleges Trader Joe’s illegally fired a union worker, posted false information about the union, unlawfully interrogated union workers, threatened to freeze workers’ wages if they unionized, gave union workers worse retirement benefits and forced workers to attend unlawful “captive audience” meetings to hear the company’s position against unionizing. Most of the complaints stem from conduct at a Trader Joe’s in Hadley, Mass., but workers at the downtown Minneapolis location are also witnesses in the trial for having their retirement benefits cut.

Trader Joe’s workers in Minneapolis were the second store to unionize, voting 55-5 to join Trader Joe’s United in 2022. At the time, Trader Joe’s said it was “prepared to immediately begin” negotiations, but none of the four unionized stores have won a first bargaining agreement covering wages, benefits, and working conditions.

In defending itself against union busting allegations, Trader Joe’s fired a cannon ball that could sink the ship of modern American labor law. Trader Joe’s attorneys - including one who previously worked for the NLRB - introduced the argument that the labor board is unconstitutional at a January 16 hearing in Connecticut before an administrative law judge in a case dealing with a slew of complaints brought by the agency.

Trader Joe’s argument follows a similar attack by Elon Musk’s SpaceX , which is represented by the same law firm, Morgan Lewis, in a lawsuit filed in federal court in Texas challenging the constitutionality of the NLRB, which is prosecuting the company for illegally firing eight employees for criticizing Musk in an open letter in 2022. While Amazon and Trader Joe’s made constitutional arguments in administrative proceedings, SpaceX’s came in a lawsuit in federal court. That means the case - which was transferred from Texas to California - is in line to be the first to trigger a ruling on the recent corporate challenges to the the NLRB’s constitutionality.

Space-X also alleged that NLRB General Counsel Jennifer Abruzzo’s interpretations of the National Labor Relations Act and her requests to the board implicate the “major questions doctrine" - which says Congress must speak clearly when it delegates authority to regulate very important issues - and are therefore unconstitutional.

Amazon essentially raised the same constitutional challenges as SpaceX did, which target the board members’ and administrative law judges’ removal protections, the adjudication of charges without a jury trial, and the board members’ exercise of power. Amazon’s filing signals that companies facing unfair labor practice charges will continue to contest NLRB’s constitutionality until there’s a definitive ruling from federal courts In addition, Amazon claimed that some of the remedies sought in the consolidated complaint violate the US Constitution.

Their argument is that the core functions of the National Labor Relations Act are unconstitutional, on the grounds that the National Labor Relations Board’s administrative courts, like those of other regulatory agencies, mix judicial functions with executive branch functions.

In actual practice, what those bodies do is hear and rule on cases such as those brought by workers on organizing campaigns who’ve been illegally fired. What Elon and Jeff would prefer is that federal courts hear such cases directly, which guarantees that by the time they reach the bench, those organizing campaigns will have become a dim memory.

This isn’t an academic exercise; it’s personal. Tesla is the target of organizing efforts from the UAW and a number of European unions, while Amazon, having suffered the indignity of having one of its warehouses vote to unionize, is avidly surveilling all of its workers for any sign of undue collective ambition.

Their arguments are the same that came before the Court in 1937, when the most reactionary corporate overlords of that era sought to destroy the threat of some modestly countervailing worker power.

They might just prevail in the courts of the United States.

Depending on the outcome of the trial, the case could be appealed to the five-member board and then to a U.S. Court of Appeals and ultimately the Supreme Court.

Businesses may now find a more sympathetic audience with the current conservative supermajority of the high court, which has shown itself willing to overturn decades of precedent. Given the deep hatred that Sam Alito holds toward unions, Musk and Bezos hope that Alito can persuade enough of his colleagues to toss the NLRA altogether, as he did with Roe v. Wade.

Amazon and Trader Joe’s are upset about losing recent union elections,” said Seth Goldstein of Julien, Mirer, Singla & Goldstein PLLC, who represents both the Amazon Labor Union and Trader Joe’s United. “In response, they are taking aggressive measures to undermine workers’ rights by challenging the constitutionality of the NLRB and NLRA. This isn’t just an attack to bust Trader Joe’s United, I think this is an attempt by right-wing billionaires and Morgan Lewis and Trader Joe’s and Elon Musk to destroy the American labor movement.”

Trader Joe’s has been my grocery store of choice since I arrived in Southern California. The first one I shopped at wat TJ’s #1, the store on Fair Oaks Avenue in Pasadena. One of the reasons I liked the house I am living in, that we moved to in 1937, is that it is a 1`5 minute walk away from the Encino TJ’s.

Like a lot of liberals and progressives, deciding to continue that business relationship is going to be “fraught,” as they say. Von’s - the supermarket next-closest - is a union store, but they are hardly a paragon of political virtue either.

Amazon is something else. They are my major source of income from sales of my books. Continuing to deal with them is a question that is out of my hands; I am pretty sure that Osprey, and their owner Bloomsbury Publishing, are not going to stop taking Amazon’s orders. Due to Amazon’s size and influence in retail sales internationally, it’s unlikely any business is going to step away.

Of the three, however, Amazon is the only one that is publicly held. They have a board of directors, several of whom are prominent in Democratic circles. It will be interesting to see if any influence campaign gets organized to make the public aware of this, and to present the board with the possibility that consumers might change their choices - after all, right now unions have their highest approval rating in decades, with 80% of the public supporting unions now.

Watch this space.

Your support of That’s Another Fine Mess as a paid subscriber is crucial to continued success. It’s easy to join, and it’s really important.

Comments are for paid subscribers only.