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ARTICLE · 21 MARCH 2024

National Labor Relations Board Is... Unconstitutional?

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Given recent activity at the National Labor Relations Board (NLRB), employers in the crosshairs of the agency have taken up a new strategy when faced with complaints...

United StatesEmployment and HR
Aaron Vance
Aaron Vance
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Given recent activity at the National Labor Relations Board (NLRB), employers in the crosshairs of the agency have taken up a new strategy when faced with complaints before the board: challenging its constitutionality.

The 88-year-old federal agency was created in 1935 to enforce the National Labor Relations Act, which protects employees' right to collectively bargain, unionize, and engage in other forms of "protected concerted activity" related to the terms and conditions of their employment.

A product of the New Deal, the NLRB has yet to face such a challenge in the modern era, but major companies like SpaceX, Starbucks, and Trader Joe's have marshaled a constitutional challenge to the legitimacy of its composition and enforcement activities, hoping to eventually find a sympathetic ear before the U.S. Supreme Court, currently controlled by a conservative majority.

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