Labor law is for the birds

Created by the National Labor Relations Act of 1935, the National Labor Relations Board is charged with overseeing union elections and investigating unfair labor practices across the country. However, unlike environmental laws, when the NLRB tries to enforce an alleged violation of labor law, it does not go to federal court, as does the Environmental Protection Agency.

Instead, NLRB complaints are heard by NLRB employees appointed as administrative law judges. Administrative law judges are appointed by the president like real federal judges, but cannot be impeached by Congress or removed by the president like other executive branch employees. This gives them a unique constitutional status that has become increasingly questioned by the Supreme Court.

This spring, the Supreme Court held Securities and Exchange Commission v. Jarkesy that a defendant accused of securities fraud by the SEC deserved a jury trial instead of a hearing before an SEC administrative law judge. The defendant also argued that SEC administrative law judges were unconstitutional because they could not be removed by the president, but the Supreme Court did not reach that issue because it determined that the defendant’s right to a jury trial was sufficient for his conviction to be cancelled.

Bypassing the issue of removal, the Supreme Court left the constitutional status of administrative law judges in limbo.

Enter the Bird Union Communications Workers of America Local 1180, which is in contract negotiations with the National Audubon Society. Since its inception, the Audubon Society has been deeply involved in lobbying Congress, with the Migratory Bird Treaty Act of 1918 being one of its first major conservation victories.

Despite the fact that cats, not climate change, have long been the No. 1 killer of birds in America, the Audubon Society has since expanded into other environmental issues and now has a staff of more than 600 and annual revenues of more than 150 million of dollars. .

In 2021, some members of the Communications Workers of America convinced some Audubon Society employees to form a union, and after the union was certified by the NLRB, the Audubon Society and the Communications Workers were in contract negotiations. No deal has been made yet.

In 2022, the union filed a complaint against the Audubon Society, and the NLRB investigated and then filed a complaint against the Audubon Society, which will be heard by an NLRB administrative law judge.

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In its response to the communications workers’ complaint, the Audubon Society argued that, like SEC administrative law judges, NLRB administrative law judges are unconstitutional.

Now, this case has a long way to go. It still has to be decided by the NLRB’s administrative law judge and the full members of the NLRB and then be appealed in federal court. But given the skepticism the Supreme Court has shown toward unaccountable federal agencies, the Bird Union could be the union that takes down the NLRB.