Regional NLRB blocked employee and her coworkers from voting out union majority disapproved of, new lawsuit challenges agency’s authority

Buffalo, NY (October 4, 2023) – Buffalo “Del-Chip” Starbucks employee Ariana Cortes has hit the National Labor Relations Board (NLRB) with a federal lawsuit, arguing that the federal agency’s current structure violates the separation of powers. The lawsuit, filed with the District Court for the District of Columbia, follows Cortes’ challenge to an NLRB Regional Director’s dismissal of her and her coworkers’ petition seeking a vote to remove Starbucks Workers United (SBWU) union officials from their store.

Cortes is receiving free legal aid in both proceedings from the National Right to Work Legal Defense Foundation. The lawsuit contends that, because NLRB Board Members cannot be removed at-will by the President, the NLRB’s structure violates Article II of the Constitution.

The National Labor Relations Act (NLRA), the law which established the Board, restricts a president’s ability to remove Board members except for neglect of duty or malfeasance. The complaint argues that “[t]hese restrictions are impermissible limitations on the President’s ability to remove Board members and violates the Constitution’s separation of powers. Thus, the Board, as currently constituted, is unconstitutional.”

“The Supreme Court made clear in Seila Law LLC v. CFPB, 140 S. Ct. 2183 (2020) and Collins v. Yellen, 141 S. Ct. 1761 (2021) that under Article II of the Constitution, 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 because it issues binding rules, adjudicates unfair labor practices and representation disputes, issues subpoenas, and decides whether and how to direct and conduct elections in representation cases.”

Regional NLRB Dismisses Starbucks Employees’ Request to Vote Out Union

On April 28, Cortes filed a petition, backed by the majority of her coworkers, that requests the NLRB conduct a decertification election at her workplace to end the monopoly bargaining power of SBWU union officials. NLRB Region 3 dismissed Cortes’ petition based on unfair labor practice charges SBWU union officials filed against Starbucks, despite there being no proven connection between those allegations and the decertification petition.

Cortes’ Foundation-provided attorneys filed a Request for Review with the Board challenging this dismissal order. That appeal contrasted the standard the NLRB often applies to petitions to certify unions, which usually proceed with little to no delay, with the standard the NLRB applies to petitions to decertify unions, which are often hamstrung and delayed.

New Federal Lawsuit Seeks to Temporarily Enjoin Unconstitutional Proceedings

Cortes’ new 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 her decertification case until her federal lawsuit is resolved.

“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 President Mark Mix. “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.”

The National Right to Work Legal Defense Foundation is a nonprofit, charitable organization providing free legal aid to employees whose human or civil rights have been violated by compulsory unionism abuses. The Foundation, which can be contacted toll-free at 1-800-336-3600, assists thousands of employees in about 200 cases nationwide per year.