Trader Joe’s Attorney Argues National Labor Relations Board Is ‘Unconstitutional’

by Dave Jamieson at

Trader Joe’s is facing a litany of union-busting charges before the National Labor Relations Board. The agency’s 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 grocer’s 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 Joe’s violated workers’ rights. Trader Joe’s’ 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 agency’s 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 company’s defense was first reported by Bloomberg.

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

“I’m certainly not going to be ruling on my own constitutionality anytime soon,” he deadpanned. “So you’ll have to take that up with the board and the federal courts.”