Legality of the NLRB challenged in federal court by a Starbucks employee

The action alleges that the board violates the Constitution's separation-of-powers principles.
The action is backed by an advocacy group dedicated to fighting mandatory union membership. | Photo: Shutterstock

The legality of the National Labor Relations Board (NLRB) is being challenged in federal court by a Starbucks employee who was rebuffed along with co-workers in their attempt to end union representation of their store.

The challenge of the union watchdog agency’s constitutionality is being backed by the National Right to Work Legal Defense Foundation, a group that opposes compulsory membership in a union.

The nonprofit organization is also supporting the Starbucks employee, Ariana Cortes, in her efforts to reverse a dismissal of her unit’s decertification petition by a regional director of the NLRB.

The request is one of 16 requests for a second unionization vote from employees whose stores are now represented by Starbucks Workers United. The NLRB has yet to grant any of the requests, though at least several of the stores have operated under union representation for at least a year.

The agency typically holds off on OK'ing a decertification vote for a year after a majority of workers vote to unionize. But it has the authority to shelve the petitions for several years if the employer involved is believed to have engaged in illegal anti-union activities. Starbucks Workers United and its parent organization, Workers United, have maintained since their drive to organize the coffee chain began in mid-2021 that Starbucks management routinely violated NLRB rules.  The agency has largely agreed with those assertions.

With legal assistance from the Right to Work group, Cortes filed a lawsuit in the U.S. District Court for the District of Columbia that alleges the NLRB’s structure violates the separation-of-powers principles set out in the U.S. Constitution.

Specifically, the action contends that the inability of the U.S. president to remove members of the NLRB except in cases of extreme misbehavior underscores how the regulatory agency blurs the lines between the executive, legislative and judicial branches of government.  

The five directors on the board are nominated by the president but confirmed for the job by the U.S. Senate, which essentially gives them job protection from executive action. It also has a quasi-judicial function, deciding on complaints and ruling on employer-employee conflicts.

Two U.S. Supreme Court decisions have found “the President must be able to remove federal officials who exercise substantial executive power,” the complaint states. “The five-member NLRB exercises substantial executive power.”  

The filing came to light a day after Starbucks petitioned the Supreme Court to re-consider the NLRB’s directive that the coffee chain re-hire seven pro-union employees in Tennessee. The request for a writ of certiorari also asks the nation’s highest court to clarify what criteria lower courts should use in adjudicating requests from the NLRB for certain legal actions against employers.

The business community has maintained that the NLRB took a radical pro-union turn under President Obama and resumed that organized-labor bias after President Biden was sworn into office.

“For too long the NLRB, especially the current Board, has operated as a union boss-friendly kangaroo court, complete with powerful bureaucrats who exercise unaccountable power in violation of the Constitution,” National Right to Work Foundation President Mark Mix said in  statement. “As the story of Ms. Cortes shows, the NLRB’s unchecked power creates real harms for workers’ rights, especially when workers seek to free themselves from the control of union bosses they disagree with.”

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