"‘Dark forces’: how US corporations turned to courts in fight against unions" 26 jan 2024

...A multi-pronged legal attack under way by Elon Musk, large corporations, business groups and anti-union litigators threatens to “raise havoc” with US labor law and hobble a resurgent labor movement, according to experts.

So far efforts to scale back or undermine workers’ rights through the US courts have centered on the National Labor Relations Board (NLRB) – the US top workplace watchdog and overseer of union elections. But other laws – including trademark and property rights statutes – are also being used.

Both Musk and Starbucks are pursuing cases that would undermine the NLRB.

Musk’s company SpaceX filed a lawsuit championed by the Federalist Society and other conservative groups against the NLRB in January. The lawsuit claims the board is unconstitutional because its members can only be removed for cause, not at will, and claims the board violates due process protections. The suit was filed in Texas...in response to a board complaint that SpaceX fired workers in retaliation for writing a letter over concerns about Musk’s behavior...

Starbucks is challenging the NLRB’s ruling that the world’s largest coffee chain must rehire seven fired union activists in Memphis, Tennessee. The board won an injunction ordering Starbucks to reinstate the workers with backpay and a lower court ruled the firings probably discouraged other employees from exercising their rights under US labor law...

The US supreme court will now hear the case, which centers on whether the NLRB has the right to ask courts to reinstate workers while litigation is ongoing – referred to as 10(j) injunctions. Unfair dismissal cases can take years to hear and the agency – which asked the supreme court not to take the case – has argued removing the power will have a chilling effect on union organizing.

Starbucks praised the decision...

But it is not just the watchdog that is under attack. Starbucks also filed a lawsuit late last year against Starbucks Workers United, alleging trademark infringement. Trader Joe’s filed a similar lawsuit against the union Trader Joe’s United, which a judge in California recently threw out. Medieval Times also filed a lawsuit against its workers’ union, claiming trademark infringement, which was also thrown out by a judge.

Seth Goldstein, a labor attorney representing Trader Joe’s United, said the trademark suits were part of an “emerging toolbox” of anti-union law firms “where they are really using everything they have to try to stop the new organizing movement”...

Cathy Creighton, director of Cornell University’s Industrial and Labor Relations Buffalo Co-Lab and a former NLRB field attorney, said corporations have long used a number of tactics to prevent and dissuade their workers from organizing unions...

“They’re trying to kill the movement. Corporate America is going full bore after the labor movement and that’s what they’re trying to do is to really annihilate them on every level that they can, including these legal maneuvers,” said Creighton...

Another increasingly popular tactic has been to argue that property rights supersede the rights of workers in workplaces, said David Muraskin, managing director for litigation at the legal advocacy group FarmStand...