The University of Southern California is attempting to block faculty from forming a union with an argument pushed by SpaceX and Amazon: that the National Labor Relations Board is unconstitutional.
In December, non-tenure-track faculty members at USC filed a petition for a union election in hopes of certifying the United Faculty-United Auto Workers union as their representative. The petition was submitted after a majority of the roughly 2,500 non-tenure-track faculty signaled their support for a union.
Ten days later, as first reported by USC Annenberg Media, USC asked the NLRB to dismiss the petition in part by arguing the structure of the board itself — an independent federal agency that works to protect worker rights by enforcing the National Labor Relations Act — “is unconstitutional.”
Corporations including Amazon, Trader Joe’s and SpaceX have all challenged the constitutionality of the NLRB in recent years. In February, the administration of President Donald Trump also declared that provisions limiting the administration’s ability to fire members of regulatory commissions, including the NLRB, were unconstitutional.
USC did not respond to Capital & Main’s specific questions about its challenge to the NLRB and instead provided the following statement: “USC respects the role of unions and has worked collaboratively with them for many years.”
For their part, supporters of the union organizing campaign disagreed with USC’s statement. Sanjay Madhav, an associate professor of technology and applied computing practice in USC’s Viterbi School of Engineering and an activist with United Faculty-UAW, said he feels the university is “aligning with political forces that are very anti-worker.”
Jennifer Abruzzo, the former NLRB general counsel who was fired by Trump in January, echoed Madhav. USC can choose to recognize the faculty union voluntarily and eliminate the need for a union election altogether, she said.
“You can’t support unionization and then claim that we can’t support unionization at our own institution because the NLRB is unconstitutional,” Abruzzo said. “Whether the NLRB is unconstitutional or not does not preclude USC from recognizing and bargaining with their workers’ chosen representative.”
Constitutional challenges to the labor board have surfaced in recent years as “anti-union companies” sense a conservative Supreme Court might reconsider precedent, said Celine McNicholas, general counsel and director of policy and government affairs at the Economic Policy Institute, a nonpartisan think tank. The Supreme Court upheld the constitutionality of the board in 1937, shortly after the National Labor Relations Act created the NLRB. It has been treated as settled law since.
McNicholas said she is not aware of any other colleges or universities that have argued that the NLRB is unconstitutional.
“Private universities are just like every other sort of large, private employer that wants to resist its workers’ right to organize,” she said.
The university’s objection to the union petition argued the labor board’s structure is unconstitutional because it limits the removal of administrative law judges and board members, and permits board members to “exercise executive, legislative, and judicial power in the same administrative proceeding.”
Elon Musk’s SpaceX similarly argued the NLRB improperly exercises executive, legislative and judicial power in violation of the separation of powers. SpaceX also argued that the board’s use of administrative law judges is unconstitutional because the judges are “insulated from presidential oversight” and NLRB proceedings deprive the company of its right to a trial by jury.
USC and Trader Joe’s have made their arguments as part of labor board proceedings, but both Amazon and SpaceX have taken their cases to the 5th U.S. Circuit Court of Appeals. The case involving Amazon remains open. The appeals court dismissed the case involving SpaceX in March.
A ruling that finds the structure of the board is unconstitutional could fundamentally upend labor rights for nearly 170 million civilian U.S. workers Abruzzo said. Without a functioning NLRB, workers cannot hold union elections or hold employers accountable for violating laws that protect workers’ collective action and bargaining rights, she added.
“It’s a big deal to preclude workers from exercising the rights guaranteed them by not only the National Labor Relations Act but also the First Amendment — the right to freely associate with one another,” Abruzzo said.
At USC, Kate Levin, an activist with United Faculty-UAW and an associate teaching professor of writing in the Dornsife College of Letters, Arts and Sciences, said she expected pushback from the university but did not expect it to take aim at the NLRB. In doing so, Levin said, the university signaled that it is willing to undermine the collective bargaining rights “not only of their own employees but of employees across the country.”
The Trump administration has also disputed the constitutionality of provisions affecting the NLRB. Sarah Harris, acting solicitor general in the Department of Justice, sent a letter to the U.S. Senate Judiciary Committee in February arguing that rules limiting the president’s power to remove members of three regulatory agencies, including the NLRB, are unconstitutional. Trump tested those rules by ousting NLRB board member Gwynne Wilcox, who sued over her firing. The move left the board without enough members to reach a quorum, effectively halting agency proceedings managed by the board. On April 7, a federal appeals court reinstated Wilcox. On April 9, the Supreme Court granted an administrative stay that blocked the reinstatement.
Meanwhile, USC faculty members are waiting to hear whether they can proceed with a union election.
In addition to arguing against the constitutionality of the NLRB, USC argued the non-tenure-track faculty members cannot join a union because they are managers and supervisors. The university also argued that the faculty members already have a voice in their working conditions through forums such as the Academic Senate.
United Faculty-UAW rejected both arguments, contending that non-tenure-track faculty members serve only in advisory roles and have no power over university policies. They also argued that faculty unions are increasingly common. Nearly 27% of faculty members across the country are represented by unions, according to the National Center for the Study of Collective Bargaining in Higher Education and the Professions at Hunter College, City University of New York.
USC’s Madhav said he wants the ability to collectively bargain for merit pay and changes to retirement benefits. The need for greater faculty input was magnified in recent days, he said, after the university implemented hiring freezes and budget cuts to contend with federal funding uncertainty and ongoing budget issues.
“In these moments of crisis, as an individual, non-tenure-track faculty, I have no say in the decisions the university makes,” he said, urging the university to support a union election. “If USC really is pro-union, they should respect our legal right to vote.”
