Companies challenge National Labor Relations Board rulings favoring unions and organizers
Workers' attempts to unionize are picking up at various nationwide chain stores such as Starbucks. (Photo by Jessica Griffin/The Philadelphia Inquirer via AP)
If you are a Starbucks enthusiast and like the ease of ordering on the mobile app, chances are great that in the past few years at least one of the locations listed in your favorites tab was closed because staff was on strike.
One of several matters involving the coffee chain that have gone before the National Labor Relations Board is a dispute involving two Philadelphia baristas who lost their jobs. Starbucks said they were fired for violating company policies and poor work performance; the baristas said they were terminated because of their involvement in union organizing. An NLRB administrative law judge ruled in the baristas’ favor and said Starbucks needed to make them whole for any loss of earnings or other benefits.
The board petitioned the Philadelphia-based 3rd U.S. Circuit Court of Appeals to ask that its order be enforced; Starbucks filed a cross petition arguing that the NLRB’s administrative law judges are unconstitutionally insulated from presidential removal and that the Constitution does not authorize the remedy ordered by the board.
In December, the 3rd Circuit rejected Starbucks’ arguments challenging the constitutionality of administrative law judges making decisions in board cases on the basis that Starbucks lacked standing. It granted the board’s petition for enforcement, but vacated the part of the order requiring Starbucks to compensate the employees for foreseeable monetary harms incurred by adverse actions against them. Amy Mason Saharia, who is listed as counsel of record for Starbucks, did not respond to an ABA Journal interview request.
Meanwhile, SpaceX, Elon Musk’s aerospace company, and Amazon have similar cases pending in the New Orleans-based 5th U.S. Circuit Court of Appeals.
Some say that during President Joe Biden’s administration, the NLRB had the strongest enforcement of labor laws in recent memory, which made things easier for unions.
Alternatively, some say rulings in favor of Amazon or SpaceX in these cases could make it much harder for workers to unionize and take joint actions to pursue better compensation and work conditions.
If management is ultimately successful with any of the cases, the NLRB’s authority could be severely limited, says Avrohom Gefen, a New York lawyer who represents businesses and individuals in employment matters.
“The board could continue processing labor disputes at an administrative level. The NLRB would continue to exist but with much less power,”says Gefen, a partner with Vishnick McGovern Milizio.
Attorneys for SpaceX and Amazon did not respond to ABA Journal interview requests.
Seth Goldstein, a New York labor lawyer, represents the Amazon Labor Union. “It’s not about the Constitution but about their real intent to take workers’ rights away because of the growing interest in unionization. So they’re destroying the mechanism necessary to address cases and to issue orders,” says Goldstein, a partner with Julien, Mirer, Singla & Goldstein, PLLC, a Working People’s Law Center.
Goldstein also represents Trader Joe’s Workers United. In 2024, the NLRB found that the grocery store chain violated the National Labor Relations Act because it prohibited workers from wearing union pins on their uniforms.
Eric Beane, a partner at Foundation Law Group in Burbank, California, handles management-side employment issues. He notes the 1937 U.S. Supreme Court case NLRB v. Jones & Laughlin Steel Corp., in which the majority found that Congress has the power to pass laws governing labor disputes if there’s a likelihood they’re related to interstate commerce.
However, Beane adds that some recent Supreme Court opinions have curtailed the powers of administrative agencies. He thinks it’s possible the court may find that some actions exceed the board’s designated authority.
Michelle “Micky” Devitt, a former NLRB lawyer who now represents unions, says the 5th Circuit lawsuits may have been a stalling technique until a more business-friendly board came along.
“In the end, their gamble seems to be paying off,” says Devitt, a partner at Philadelphia’s Willig, Williams & Davidson.
Administrative reviews
In January, President Donald Trump fired NLRB General Counsel Jennifer Abruzzo and named William Cowen acting general counsel.
Since his appointment, Cowen has, as predicted, rescinded more than 25 of Abruzzo’s memos, including one from 2022 that said employers’ workplace surveillance programs may prevent workers from engaging in protected activities in violation of the National Labor Relations Act. Additionally, the acting general counsel rescinded a 2023 memo that found noncompete language in employment contracts and severance agreements is overbroad and in most circumstances violates the National Labor Relations Act.
Marvin E. Kaplan chaired the board from December 2017 to April 2018, during Trump’s first administration. In January, Trump announced that Kaplan would again be chairing the board. Previously, Kaplan served as chief counsel to the chairman of the Occupational Safety and Health Review Commission, and he was counsel for the House of Representatives’ Oversight Government Reform Committee.
Trump also fired Democratic board member Gwynne Wilcox in January, leaving the board with just two members, short of the quorum it requires to adjudicate routine cases.
Wilcox subsequently filed a lawsuit against Trump and Kaplan seeking reinstatement, saying her firing was a violation of the National Labor Relations Act.
John Ring, a chair of the board during Trump’s first term, is now a Morgan, Lewis & Bockius partner. The firm represents SpaceX in its 5th Circuit appeal. Ring is not listed on any of that case’s filings, according to PacerPro records.
This story was originally published in the April-May 2025 issue of the ABA Journal under the headline: “Lattes & Logistics: Companies challenge National Labor Relations Board rulings favoring unions and organizers.”
Write a letter to the editor, share a story tip or update, or report an error.
