America’s media class remains bogged in an asinine culture war, much of it carried out on Twitter (now X). Meanwhile, some of the nation’s biggest employers have been working the legal system to restore the labour-market conditions that prevailed in the 19th century, when bosses wielded near-absolute power and taking collective action was all but impossible for workers. As it happens, this courtroom putsch is led by none other than Elon Musk, the X owner often held up as an anti-elite champion by the populist right.
Musk and his allies aim to tear down Franklin Delano Roosevelt’s New Deal order and the hard-won achievements of the labour movement, victories sealed with the blood and tears of untold workers. It’s a moment of danger, and opportunity, for organised labour in the United States. It’s also a serious reality check for self-proclaimed “pro-worker” Republicans.
On 3 January the National Labor Relations Board (NLRB) filed a complaint against Musk’s SpaceX, charging the firm with unlawful retaliation in firing a group of employees who had dared to criticise the magnate’s online behaviour: in an internal letter they had called their boss’s posts “a frequent source of… embarrassment for us”. The next day, SpaceX sued the NLRB in federal court, arguing that the board itself is unconstitutional, since it functions as both an executive agency enforcing federal labour law and as an administrative court adjudicating labour disputes. This structure, SpaceX claimed, citing James Madison, is the “very definition of tyranny”.
Jeff Bezos’s Amazon soon joined Musk’s challenge to the New Deal – as did Trader Joe’s, the upscale grocery chain. At an NLRB hearing over Trader Joe’s own alleged union-busting, a lawyer for the company told the administrative judge that the National Labor Relations Act (NLRA) itself, including the board’s structure, might be “unconstitutional”.
The legal and political theory is so much claptrap. In 1937 the Supreme Court upheld the constitutionality of the National Labor Relations Act, the New Deal law that legalised collective bargaining. The bipartisan board, a creation of the law, is like other administrative agencies that both enforce and adjudicate, and its quasi-judicial functions are themselves subject to review by the courts.
Far from “tyrannical”, the board reflects the democratic spirit of the New Deal, inviting business, unions and government to coordinate labour policy and resolve disputes in a classic “tripartite” structure. What Musk and co want is to move all disputes into the federal courts, with their high expenses and glacial pace. This would ensure that when an employer engages in unlawful practices, the union would get mired in litigation – and by the time the courts reach a decision, the “organising campaigns will have become a dim memory”, as the American Prospect’s Harold Meyerson has noted.
The challenge is notable not least for laying bare the capitalist class’s capacity to join forces across apparent cultural divides. Musk is something of a political outlier among his fellow executives, who are increasingly withholding their advertising dollars from his social-media platform over its profusion of cranky content. Trader Joe’s, by contrast, boasts a lefty California vibe and touts its commitment to diversity and inclusion. Amazon has likewise cultivated a progressive image, leading corporate America’s Black Lives Matter advocacy in the wake of George Floyd’s killing in 2020. Yet when it comes to shared class interests, cultural disagreements melt away, and Musk, Bezos and the family owners of Trader Joe’s act as one.
The brazenness of the legal assault against the New Deal also attests to the continued weakness of organised labour in the US. As it is, the proportion of private-sector workers who belong to a union has dropped to 6 per cent, down from a third at its postwar peak. This dismal state of affairs is itself a result of the employer class’s decades-long effort, which began at the end of the 1940s, to undo the New Deal.
Since then, conservative judges and GOP-dominated labour boards have steadily undermined the NLRA, turning it from a mechanism for encouraging collective bargaining into an anti-union gauntlet. Today, employers are allowed to terrify workers in captive-audience settings about the “dangers” of unionising. They can also bar union organisers from speaking up at these meetings, or even accessing workers in company car parks, among other restrictions. Workers’ participation in union elections dropped by 90 per cent between the 1950s and the early 2000s; the number of workplaces winning their votes for union recognition collapsed to 40 per cent in the 1990s, down from 80 per cent in the 1940s.
Elon Musk and co want to demolish the last few blocks of an already weak labour structure that gives employers every advantage. It should be taken as an opportunity by labour leaders to renew the radicalism that helped bring about the New Deal in the first place. Imagine the return of wildcat strikes, general mobilisations and the like, all aimed at replacing the creaky NLRA and its shop-by-shop organising with a modern sectoral bargaining regime like those that prevail across much of continental Europe.
As for the populist Republicans who declare their love for the oppressed working class, they can either join the struggle to preserve basic workers’ rights, or they can continue to worship Musk. It is, to echo a Reagan mantra, a time for choosing.
[See also: Alexei Navalny is dead]
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This article appears in the 28 Feb 2024 issue of the New Statesman, The QE Theory of Everything