Trader Joe’s Quietly Argues That the NLRB Is Unconstitutional: ‘They Just Don’t Care About Workers’ Rights’

On January 16, Maeg Yosef was sitting in a drab room in Hartford, Connecticut, listening to attorneys for her employer, Trader Joe's, deny that the company had done anything wrong. 

Yosef has worked at the Trader Joe's in Hadley, Massachusetts, for nearly two decades; was part of the very first group of workers to organize a union at the grocery chains; and now also works as the communications director for the union, Trader Joe's United. She was in Hartford because the National Labor Relations Board had determined that there was merit in the union's claims that Trader Joe's had engaged in unlawful termination, retaliation, and other illegal union-busting tactics at the Hadley store. At this NLRB hearing, an administrative law judge was listening to one of Trader Joe's attorneys talk about how the company was planning to oppose these charges at an administrative trial, when that attorney, who works for the firm Morgan Lewis, casually noted that they believed the NLRB itself was unconstitutional. 

"I was like, whoa, holy shit! Did that really just happen?" Yosef recalled. 

Trader Joe's joins corporations like Starbucks, Amazon, and SpaceX in arguing that the federal agency created by the 89-year-old cornerstone of labor law, which guarantees a worker's right to organize and collectively bargain, should be gutted. 

"It's really surreal to have something so momentous happen in kind of like this little windowless NLRB hearing room. But it is huge," Yosef told Hell Gate. 

Workers at the Essex Crossing location on the Lower East Side say that this escalation of anti-union tactics can be felt in their store.

"What has been really wild about the last few months of organizing is this connection between what corporate is saying about the NLRA and what's been happening on the ground," Bridget Arend, a Trader Joe's worker and union organizer at the store, told Hell Gate. After the Essex Crossing union vote ended in a 76-76 tie last spring, workers there have continued to advocate for union representation, and say they face retaliation on a daily basis. "It's almost been, like, validating to see news about it, because people act like Trader Joe's is this nice place to work, even after everything that's happened," Arend said.

Seth Goldstein, an attorney who represents Trader Joe's United, as well as Amazon Labor Union and other unions, said the corporations arguing that the NLRB is unconstitutional "want to take us back to the 1920s."

"This doesn't stop at the National Labor Relations Act," Goldstein told Hell Gate. "This goes to the Department of Labor, to all worker protections, food safety protections, everything. They wanted to dismantle the New Deal."

Goldstein pointed out that the same law firm, Morgan Lewis, is representing Amazon, SpaceX, and Trader Joe's. "Morgan Lewis is driving this assault on workers rights in America and trying to destroy the American labor movement," Goldstein said. "Why is Trader Joe's being represented by them?"

Trader Joe's has not responded to multiple requests for comment, and our emails to Morgan Lewis have not yet been returned. But there is some evidence to suggest Trader Joe's is trying to distance themselves from their own legal argument, while not having to drop the argument itself.

After a customer sent an email to Trader Joe's CEO Bryan Palbaum expressing concern, they received a response last week from the chain's general counsel, Kathryn Cahan, who claimed that there is "ongoing confusion about a comment made on January 16 in an NLRB hearing, as reported in the press."

Cahan then cited a statement made by their attorneys at Morgan Lewis: "Trader Joe's has not filed or joined any lawsuit that challenges the constitutionality of the NLRB's administrative law judge system, or that seeks to dismantle any aspect of the NLRB…Trader Joe's has no intention of filing or joining any such lawsuit."

This is technically true, but elides the fact that Trader Joe's doesn't need to join or file a lawsuit to challenge the constitutionality of the NLRB. Their attorneys already stated they planned on making this argument when defending the allegations of union busting in front of the NLRB. And if the NLRB rules in favor of the union, Trader Joe's can appeal that ruling, theoretically, all the way up to the Supreme Court. (We emailed Cahan about this, and will update if we get a response.)

"To me, it seems clear that this is something that the company has signed off on, but they just don't want to own it," said Yosef, who shared a copy of Cahan's email with Hell Gate. "Four different companies have made this argument in one way or another. If any of them made it to the Supreme Court, it could potentially have a huge impact on labor."

Companies like Trader Joe's might be looking to challenge the way the NLRB works—the federal agency investigates, prosecutes, and adjudicates disputes between labor and management, a process overseen by a group of administrative law judges, or ALJs—because the Supreme Court is already currently weighing a similar case.

This past November, the Supreme Court heard arguments in SEC v. Jarkesy. The case raises several legal questions, but there was one the justices seemed most interested in discussing: Do administrative hearings presided over by ALJs violate the Seventh Amendment right to a jury trial in civil matters? 

If the Supreme Court shows a willingness to dismantle this part of the "administrative state," or seem receptive to arguments to do so later, companies who want to deliver a blow against the NLRB will likely keep trying to get their cases in front of the court's 6-3 conservative majority.

Fordham Law professor and labor law expert James Brudney said that if the Supreme Court accepted the arguments of Trader Joe's and Amazon and ruled parts or all of the NLRB unconstitutional, it would represent "a severe blow to the rights of workers."

"Not that they haven't reversed longstanding precedents, as we know, in other areas," Brudney said. "But for the court to say that the National Labor Relations Act has centrally unconstitutional elements to it, when those elements have been in place since 1935, would seem an example of diminished respect for the rule of law."

A big part of the problem for workers, Brudney said, is that there are very few penalties for companies who break labor laws to begin with.

"When Starbucks or Trader Joe's ends up with a union voted in and they refuse to bargain, or bargain in bad faith and don't reach an agreement, the remedy at the moment is you just have to go back and bargain some more," Brudney said. "Starbucks has lost 100-plus elections, and there isn't a single collective bargaining agreement." (On Tuesday, Starbucks announced they would begin talks with the union, Workers United, after more than two years of stalling.)

This past August, the NLRB did give workers a new tool to address the imbalance of power: If an employer is found to have committed labor law violations during a union election, the NLRB will order the company to bargain with the union, no new union election required.

Workers at the Essex Crossing Trader Joe's say this is exactly what happened during their union election. Trader Joe's United has filed complaints with the NLRB, which is currently weighing their request to grant the union bargaining status at the shop. Last Monday, workers at the store staged a walk-out, after one of their colleagues was fired, allegedly amidst another wave of union-busting.

"They've been retaliating against other organizers and union supporters at our store—constantly, day in and day out," Jordan Pollack, a worker at the store who supports the union, told Hell Gate. "Whether that's removing people from sections or like surveilling them around the store, or reprimanding them for things they don't reprimand visibly anti-union people for. I think it's just like, taking a toll and we're like, no more."

"They just don't care about workers rights," Pollack added. "And we're seeing it unfold at our store, so we walked out in reaction to that." (Trader Joe's has not responded to our questions about allegations of union busting at Essex Crossing.)

So what should Trader Joe's fans do, if anything, in response to the company's push to get rid of the NLRB? While Trader Joe's United has not called for customers to boycott the stores, Pollack said customers who are disturbed by the arguments the company is making about the NLRB should tell Trader Joe's how they feel.

"Talk to our managers when they're in the store, tell them to stop union busting. Tell them you don't like that," Pollack said.

Fredd Moore, who said he was fired from the Essex Crossing location in late January because he was vocally pro-union, said that customers should see Trader Joe's as "New York grocery store Walmart."

"So if you're going to allow Walmart like this, to come in, just make sure they're sticking to what you want for your city," Moore told Hell Gate.

Outside of the Trader Joe's at Essex Crossing on Tuesday, Diana Diaz munched on a Trader Joe's jerky stick she had just bought, and said she was taken aback that the company would argue that the NLRB was unconstitutional. 

"I'm surprised, because everything I've ever read about them is that they're very nice to their workers," Diaz told Hell Gate. "I need more information. I'll probably call their headquarters and say, 'What's up? What are your reasons for this?'"

Shopper Meredith Goulburn was a bit more direct.

"It does sound like classic big company bullshit," Goulburn said. "I don't support that."