In Trump camp again, Elon Musk says NLRB is unconstitutional

WACO, Texas —In yet another case of successful judge-shopping by a right-wing corporate chieftain, U.S. District Judge Alan Albright of Waco, Texas, a Donald Trump appointee in the rural area of a deep-red state, has ruled the National Labor Relations Board’s makeup and procedures may be unconstitutional.

Albright’s late-July decision, which he forecast in a preliminary order two months before, gave a win to one of the nation’s richest people, Elon Musk.

Musk challenged the board’s right to rule on labor law-breaking, formally called unfair labor practices, at Musk’s company, SpaceX. Judge Albright granted Musk’s demand for an injunction barring the NLRB from penalizing his illegal actions.

But then the judge went further, directly flying in the face of Supreme Court rulings decades ago legalizing the NLRB. Those rulings overrode a furious onslaught by the criminal corporate class against the board and the National Labor Relations Act, which created and empowered it.

Seek freedom to repress workers

The companies wanted to be free to continue to repress and exploit workers, but the New Deal law was designed to give workers leverage against the tycoons, and the justices upheld it. Republican-authored laws and judicial decisions have since weakened the law and the board, creating the cumbersome and court-heavy obstacle course workers must traverse as they try to organize.

Now Judge Albright has apparently gone all the way back to pre-New Deal days. His injunction questions the board’s structure and decision-making process, even though that process is now the obstacle course.

Musk’s trip to the U.S. District Court for Western Texas, located in the distant rural city of Waco, is par for the course for right-wing corporate chieftains and their lobbies, such as the Chamber of Commerce or the Associated Builders and Contractors. Right-wing politicians, especially Texans, do the same thing.

Both groups “judge shop” for friendly jurists, usually named by right-wing former Republican President Donald Trump, to hear their cases against federal rulings, workers, or both—knowing that for such judges, ideology comes first. Trump named Judge Albright to the bench.

If higher courts uphold Judge Albright’s decision, labor-management relations in the U.S., already skewed towards bosses after Republican emasculation of the National Labor Relations Act, could be thrown into chaos.

That’s because the board’s system for handling labor-management cases calls for board staffers, representing the General Counsel, to investigate labor law-breaking complaints, for assistant GCs to present them to an NLRB administrative law judge, and for that judge to rule on the case—including penalties—before it heads upwards to the full board and then to the courts.

In lay terms, that puts the board in the position of being both attorney and judge of a firm’s conduct, and that’s what’s unconstitutional, Judge Albright ruled.

Judge Albright declared NLRB members “clearly wield substantial executive power through their administrative, policymaking, and prosecutorial authority.”

But the agency also wields power through its administrative law judges’ decisions on labor law-breaking cases and through the General Counsel’s role in seeking to use the board’s strongest tool against law-breakers, a federal 10(j) court injunction.

The injunctions order immediate relief, restitution, and reinstatement of wronged workers. Since the full board must OK the counsel’s request for the injunctions, it functions as both attorney and judge, Judge Albright said.

Relying on a recent U.S. Supreme Court ruling in a similar case involving the Securities and Exchange Commission and its ALJs, the judge said that makes the labor board unconstitutional.

Neither the NLRB’s General Counsel’s office nor the independent staff union for the board’s workers had any immediate comment on Judge Albright’s ruling. NLRB General Counsel Jennifer Abruzzo is also the board’s chief administrator.