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Jewel-Osco pharmacy division argues National Labor Relations Act unconstitutional
Jewel-Osco's pharmacy division argued this month that the structure of the National Labor Relations Board, the body that enforces federal labor law in the U.S., is unconstitutional.
The company joins a lengthy and growing list of employers including SpaceX, Amazon, Trader Joe's, the University of Southern California, the dating app Grindr and Oak Brook-based hot dog empire Portillo's that have made similar arguments, either during administrative proceedings overseen by the labor board itself or in federal lawsuits seeking to get the agency declared unconstitutional.
Osco, which was acquired by Jewel in 1961, entered the fray after local labor board officials issued a complaint against it last month alleging it had refused to bargain in good faith with the union representing its pharmacists, Teamsters Local 727.
The company responded to those allegations by arguing that the National Labor Relations Act, the law it is accused of violating, is unconstitutional.
The NLRA, also known as the Wagner Act, was signed into law by President Franklin Roosevelt in 1935. It has governed the rights of American workers to form unions, bargain collectively and organize together without retaliation from their employers for the last 90 years. The National Labor Relations Board is the independent federal agency charged with enforcing the NLRA.
In addition to arguing that the NLRA is unconstitutional, Osco denied specific allegations leveled against it, including that it had failed to provide the Teamsters with information related to various grievances the union had filed on behalf of its members.
Jayna Brown, general counsel for Teamsters Local 727, described the company's constitutionality arguments as 'completely unmeritorious.'
Osco's outside counsel, from the law firm Littler Mendelson, specifically argued that the NLRB's administrative law judges and its board members are either unconstitutionally appointed or unconstitutionally protected from firing, echoing arguments made by SpaceX in federal court.
Early this year, President Donald Trump fired former NLRB board member Gwynne Wilcox in an unprecedented move that set up a legal test of the latter argument. Wilcox has since sued over her firing. Last month, the Supreme Court issued an order that bars Wilcox from returning to the board while her legal challenge is ongoing.
The firing of Wilcox has left the labor board without a quorum, meaning it cannot issue rulings on cases appealed to it from lower levels of review at the NLRB.
In its June filing, Osco also argued that because the board lacks a quorum, the agency's general counsel and its regional officials in Chicago also lack authority to enforce the law, such as by issuing a complaint against Osco. That argument echoes one made earlier this year by Whole Foods, which is owned by Amazon.
The company's constitutional arguments are 'purely a tactic by management to skirt around their clear and undeniable legal obligations for their union-represented employees,' said Brown, the Teamsters' attorney.
The local represents about 500 pharmacy workers in stores throughout Cook, DuPage, Lake and McHenry counties, Brown said. The pharmacists are working under a collective bargaining agreement that expires in 2028, she said.
In a message sent to union members this month, the local's secretary-treasurer, John Coli, Jr., criticized what he described as the company's 'foolish choice to spend money on overpriced legal counsel instead of just doing … what is right by their hardworking employees.'
Neither Jewel-Osco nor its parent company, Albertsons, responded to requests for comment.
The first Jewel-Osco combination grocery-pharmacy stores opened in the 1960s.
Osco's attorney has asked for the case against it to be dismissed in its entirety. A hearing in the case is set for early September.
