Even as Republicans claim majority support from working-class voters, the pattern of their furloughs during the current government shutdown makes clear that this support is in no way reciprocated. While almost all the employees at the Treasury Department are still on the job (albeit working without pay), a bare 17 of the 1,270 employees in the Labor Department’s Wage and Hour Division have been kept at work, which means that nonpayment and underpayment of workers’ wages is now the de jure, rather than merely de facto, order of the day. Just 179 of the 1,664 employees of the Occupational Safety and Health Administration (OSHA) are reporting to work, which tells you how essential this president considers workplace safety.
These numbers are imperfect metrics, I readily admit, of the Trump administration’s view of the importance of capital over labor, but they’ll do for starters.
This just piles on to the gutting of labor-focused departments and agencies, part of the ongoing government shutdown initiated when Trump returned to the White House on January 20. The National Labor Relations Board currently has just one of its allotted five members (Democrat David Prouty), and thus lacks the quorum required to make any rulings. In that absence, regional NLRB offices can still bring employers and employees before regional administrative judges to rule on alleged violations of labor law, but the guilty parties, if any, can delay judgment by appealing to the Board, which in its current state can’t rule on anything. Trump has nominated replacements for two of the vacant Republican seats, and hearings were held last week, but until they are confirmed, any company can illegally fire workers seeking to unionize, or simply ignore a vote by its employees to join or form a union, secure in the belief that no legal power can be brought against it.
Even at full strength, decades of employer resistance and adverse court rulings have weakened the National Labor Relations Act to the point that it no longer provides the kind of protection to workers seeking a union that it was intended to do. But Trump has now brought it to the point of near-total nullification. Ironically, the one provision of the NLRA still in force—preempting states from having any legal authority to involve themselves in relations between private-sector employers and employees, questions of collective bargaining most particularly—has been seen as blocking states from intervening in such matters.
America’s two wealthiest individuals have taken action to ensure that the NLRB can never disrupt their overwhelming power.
But the neutering of the Board, now well into its sixth month, has prompted some blue states to attempt to fill that gap. New York recently enacted a law that gives the state the power to step in where the NLRB normally would but hasn’t. And last Tuesday, California Gov. Gavin Newsom signed into law an even stronger version of that innovation. That new law gave the state’s Public Employment Relations Board the power to handle a private-sector case when the NLRB “has expressly or impliedly ceded jurisdiction,” including when charges filed with the agency or a union election certification languishes for more than six months, or when the Board is without a quorum. New York’s law has been challenged in federal court by the Trump administration; a similar challenge to California’s law is sure to follow.
For their part, America’s two wealthiest individuals have taken action to ensure that the NLRB can never disrupt their overwhelming power. Elon Musk’s SpaceX and Jeff Bezos’s Amazon have both filed lawsuits arguing that the NLRB itself is unconstitutional, because its members, like members of every regulatory agency, serve fixed terms and cannot be discharged by the president until their terms expire.
In 1937, the Supreme Court upheld the Board’s constitutionality, but the current Court might well be inclined to reverse that ruling, under the zealous tutelage of the union-loathing Samuel Alito. A circuit court has already ruled in favor of the two oligarchs. Should the Supreme Court uphold that, the laws of New York, California, and any other kindred states would be the only thing that ensures any worker’s right to collective bargaining.
AS I NOTED ABOVE, THE LACK OF A BOARD QUORUM hasn’t deterred the NLRB’s regional attorneys and courts from adjudicating disputes, and up until last Wednesday’s shutdown, one such case was being heard in the Board’s Los Angeles region. It pitted Amazon against one of its contractors, which employs drivers to deliver goods purchased on Amazon’s website. The contractor, Battle-Tested Strategies (BTS), was owned by Johnathon Ervin, a former Marine who had no problems when his 84 drivers voted to join the Teamsters; he recognized the union as their bargaining agent and agreed upon a contract. Amazon’s response was not only to refuse to certify the bargaining agreement, which included raises for the drivers, but also to sever its contract with BTS, lest Amazon be identified as the drivers’ joint employer.
The Teamsters then sued Amazon for violating the NLRA’s joint-employer rule, which was put in place not by Biden’s Board, but by Trump’s in 2020. Last August, the Board’s Los Angeles region also charged Amazon with illegally refusing to enter into bargaining with the drivers on the pretext that it couldn’t be viewed as the drivers’ joint employer, since, Amazon insisted, the drivers worked only for BTS. Under the terms of the Board’s joint-employer rule, the L.A. region charged that Amazon was clearly the drivers’ joint employer and thus obligated to bargain collectively with them. The Trump rule specified that a company had to exercise “substantial direct and immediate control” over the contractor’s workers’ terms of employment to be considered a joint employer. By that standard, the NLRB and the Teamsters have argued, Amazon is absolutely a joint employer.
Until the shutdown, their lawyers were arguing that case before a Los Angeles–based administrative judge. Two weeks ago, I sat in for a day in Judge Rebekah Ramirez’s courtroom to listen to the case. On that day, Ervin was on the stand, testifying in response to questions posed to him by NLRB attorney Sanam Yasseri. (I had missed the previous testimony given by the Teamsters’ Randy Korgan, questioned by Teamsters attorney Julie Gutman Dickinson.)
Yasseri’s line of questioning was straightforward. She simply asked Ervin whether he had received specific documents from Amazon, and whether he’d put the directives in those documents into effect. These documents covered every conceivable aspect of employer-employee relations: what he must do if an employee was late for work, what Amazon documents he must tell his drivers to consult if they encountered a wide range of difficulties, what circumstances required him to give a bonus to a driver and how much that bonus should be, and so on.
Ervin would respond that he remembered receiving the specific documents, and that he’d complied with them. At times, Yasseri asked him if he had played any role, or had the option of playing any role, in formulating those documents. Ervin responded that he hadn’t; they were all entirely Amazon’s creations.
After Ervin had identified a document and testified that he had implemented its directives, Yasseri would then introduce it into evidence. By the time the court recessed for the day, at around 5 p.m., she was up to Exhibit #89, but there were more to come, and Ervin would have to resume his testimony the following day. Occasionally, Amazon’s lead attorney, Brian Stolzenbach, objected to the introduction of a particular document, but the judge usually overruled his objections, which were few and far between.
The evidence, in short, was completely devastating to Amazon’s claim that it’s not a joint employer for its delivery service partners. The directives Amazon imposed on BTS’s employees made clear that a driver all but has to get an OK from Amazon’s home office if he wants to blow his nose. I profess no legal expertise, but it’s clear to me that there’s no way Amazon can wriggle out of joint-employer status once this case is decided.
And were that verdict upheld by the Board, and then in federal court—which outcome any even remotely empirically minded judge would be compelled to confirm—then Amazon would be the joint employer not just of the 84 BTS drivers, but of all its drivers under contract in the United States, who number well into the six figures. BTS is just one of the roughly 3,500 delivery contractors that work for Amazon.
Of course, Amazon can and surely will appeal such a verdict to the Board, which in its current condition lacks the quorum required to rule on it, and if Trump’s nominees are ever confirmed will have a conservative majority. So either workers’ rights will be withheld in a kind of long-term suspended animation, or anti-union board members will decide the drivers’ fate.
Which is why those New York and California laws, far-fetched though they might seem, may prove to be the only way that those states’ workers can retain and exercise their most basic rights.