Foundation Lawsuit: Biden NLRB Structure Violates the U.S. Constitution
The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, November/December 2023 edition. To view other editions of Foundation Action or to sign up for a free subscription, click here.
Groundbreaking suit filed for Starbucks employee who was denied vote to oust unwanted union bosses
Starbucks employee Ariana Cortes’ Foundation attorney, Aaron Solem (right), is making a cutting-edge argument targeting the NLRB’s lack of accountability.
WASHINGTON, DC – The National Labor Relations Board (NLRB) is supposed to protect the right of workers to freely choose whether to associate with a union or not. The NLRB is also charged with holding unions and employers accountable when they violate worker rights. Too often, however, it has simply acted as an agency that generates policies to entrench union bosses’ power over workers while shielding union bosses from any kind of liability.
A new federal lawsuit from a National Right to Work Foundation-backed Starbucks employee, currently pending at the D.C. District Court, could upend the federal agency and result in a ruling that the current Labor Board’s structure violates the Constitution.
Employee Challenges NLRB Bureaucrats’ Protections from Presidential Removal
Ariana Cortes, a worker at the Buffalo, NY, “Del-Chip” Starbucks branch, hit the NLRB with the groundbreaking lawsuit in October, contending that the federal agency’s current structure violates the separation of powers mandated by the Constitution.
Cortes’ suit follows Foundation attorneys’ defense of her and her coworkers’ petition requesting a vote to remove Starbucks Workers United (SBWU) union officials from their workplace. Regional NLRB officials dismissed Cortes’ majority-backed petition based on SBWU allegations against Starbucks management that have no proven connection to Cortes and her coworkers’ desire for a union decertification vote.
Cortes’ lawsuit argues that because NLRB members cannot be removed at-will by the President, the NLRB’s structure violates Article II of the Constitution. Under Article II, the lawsuit contends, the President must have the power to remove officials that exercise substantial executive power.
Because the NLRB enforces federal labor law, manages union elections, and can issue legally binding rules and regulations, the lawsuit contends that the agency exercises substantial executive power. Therefore, it falls within the scope of the President’s power to remove officials at will. However, the National Labor Relations Act (NLRA), the law that established the NLRB, restricts the President’s ability to remove Board members except for neglect of duty or malfeasance.
“[T]hese restrictions are impermissible limitations on the President’s ability to remove Board members and violate the Constitution’s separation of powers. Thus, the Board, as currently constituted, is unconstitutional,” the complaint states.
Lawsuit: Unconstitutional NLRB Proceedings Must Stop
Cortes’ new federal lawsuit seeks a declaration from the District Court that the structure of the NLRB as it currently exists is unconstitutional.
“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,” commented National Right to Work Foundation Vice President and Legal Director William Messenger. “The NLRB’s operation outside constitutional norms is easily exploited by Big Labor.”
“But 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,” Messenger added.
Texas Starbucks Employee Challenges Federal Labor Board Structure as Unconstitutional in New Federal Lawsuit
Regional NLRB blocked employee and his coworkers from voting out union, new lawsuit now second pending worker-backed challenge to agency’s authority
Fort Worth, TX (January 24, 2024) – Reed Busler, an employee at the “Military Highway” Starbucks in Shavano Park, TX, is hitting the National Labor Relations Board (NLRB) with a federal lawsuit arguing the federal agency’s structure violates the separation of powers. The lawsuit, filed in the U.S. District Court for the Northern District of Texas, argues that the agency violates Article II of the Constitution by insulating NLRB Board Members from at-will removal by the President.
Busler’s lawsuit stems from an NLRB Regional Director’s dismissal of a petition he filed on behalf of his coworkers seeking an election to remove the Starbucks Workers United (SBWU) union from power at the coffee shop. Busler is receiving free legal aid in both proceedings from National Right to Work Legal Defense Foundation staff attorneys.
The National Labor Relations Act (NLRA), the law that established the NLRB, restricts a president’s ability to remove Board members except for neglect of duty or malfeasance. Busler’s complaint contends that these restraints violate “the fundamental separation of powers principle that the President must be free to remove executive officers at will,” as dictated by Supreme Court cases like Seila Law LLC v. CFPB (2020) and Collins v. Yellen (2021).
“Board Members are principal officers wielding substantial executive power. This includes the power to promulgate binding rules, to enforce the law through adjudicating unfair labor practice disputes and issuing remedies, to issue subpoenas, and to enforce the law through adjudicating representation proceedings,” reads the complaint. “By adjudicating Busler’s petition notwithstanding its unconstitutional structure, the Board is violating his right to have his petition adjudicated by politically accountable officials.”
Regional NLRB Trapped Workers in Union Despite Reports of Abrasive Behavior
Busler submitted his union decertification petition on November 16, 2023. The petition contained signatures from enough of his coworkers to trigger a vote to remove the union under NLRB rules. However, the NLRB Regional Director still blocked the vote based on unfair labor practice charges SBWU union officials filed against Starbucks, despite there being no proven connection between those allegations and Busler’s decertification petition.
The NLRB’s refusal to hold a union decertification vote means that Busler and his coworkers are still trapped under the “representation” of the SBWU union, despite numerous reports of SBWU agents’ combative and abrasive behavior at the store. In other filings in the NLRB case, Busler and his colleagues reported that SBWU officials ordered a divisive strike in which “[union] supporters outside the store were loud, boisterous, and were screaming at customers” and “would sometimes yell at other employees or tell partners that if they did not support Workers United they would be personally ostracized by other partners.”
“Moreover, I believe the other employees who signed my decertification petition did not do so because they were coerced or duped by anything Starbucks allegedly did wrong, but because the Union was a divisive force in our store and has now ignored our location for several months,” Busler stated in an NLRB filing.
Lawsuit Seeks to Stop NLRB from Exercising Unconstitutional Power Over Workers’ Case
Busler’s federal lawsuit seeks a declaration from the District Court that the structure of the NLRB as it currently exists is unconstitutional, and an injunction halting the NLRB from proceeding with his decertification case until his federal lawsuit is resolved. Busler now joins Buffalo, NY-based Starbucks worker Ariana Cortes in challenging the structure of the NLRB with free Foundation legal aid.
“The National Labor Relations Board should not be a union boss-friendly kangaroo court run by powerful bureaucrats who exercise unaccountable power in violation of the Constitution,” commented National Right to Work Foundation President Mark Mix. “Mr. Busler seeks to remove a union he and his colleagues oppose, and he is entitled to pursue that statutory right before an agency whose structure complies with the Constitution.”
