Labor & Employment Law Daily Wrap Up, LABOR—D.C. Cir.: Baristas’ lawsuit, seeking to declare NLRB members’ tenure protections unconstitutional, properly dismissed, (Jul 23, 2025)

By Jason Albright, J.D.

The two workers also had sought decertification of Workers United as the exclusive representative of employees at the Starbucks stores where they are baristas.

The NLRB was entitled to dismissal of a lawsuit brought by two Starbucks baristas who sought to challenge the constitutionality of the statutory tenure protections of members of the NLRB, in parallel with their petitions before the Board to decertify a union as the exclusive representative of employees at the Starbucks stores where they work. Holding that the parties are no longer sufficiently adverse to support Article III jurisdiction, the D.C. Circuit observed that, to have a case or controversy, the parties must seek adverse forms of relief from the court such that the court’s judgment will “require [the defendant] to act.” Here, the appellants and the government “now fully agree” to the proposition that the Board members’ removal protections are unconstitutional, and they have thus “not sought any relief from this court that the government has refused to provide” (Cortes v. NLRB, Nos. 24-5152 and 24-5166 (D.C. Cir. July 22, 2025)).

Baristas in New York state. The two plaintiffs, according to the court, are baristas employed at Starbucks stores in Buffalo, New York, and Depew, New York, respectively.

Certification of Workers United. In the Spring of 2022, the NLRB certified Workers United as the exclusive representative of employees at the stores in which the two work.

Decertification petitions. Once the Board certifies a union as the representative of a particular bargaining unit, federal labor law generally entitles that union to a conclusive presumption of majority support for the year following certification. After that year elapsed, the first of the two baristas filed a decertification petition with the NLRB regional director requesting a new election in her store to determine whether a majority of the employees wished to continue being represented by Workers United. And on October 18, the second of the two filed a similar decertification petition.

ULP charges brewing. At the time that the two filed their decertification petitions, however, the union had already filed a number of unfair labor practice (ULP) charges against Starbucks, and the NLRB generally does not rule on a decertification petition when it has a ULP proceeding pending against the employer as long as the regional director “has found merit in an unfair labor practice charge involving misconduct that would irrevocably taint the petition and any related election.” Thus, the NLRB regional director dismissed the two decertification petitions subject to reinstatement after final disposition in the pending ULP proceedings.

Review by board. The two baristas each sought review by the Board of the regional director’s dismissal orders, but the Board denied their requests for review, holding instead that their petitions were subject to reinstatement, if appropriate, after final disposition of the pending unfair labor practice proceedings against Starbucks. And in line with its standard practice, the Board made the two parties in interest to the pending ULP charges so that they would be notified of the final outcome of those cases.

Parallel lawsuit. After the two baristas filed their petitions for decertification, they filed suit in the U.S. District Court for the District of Columbia. Their complaint challenges the constitutionality of the statutory tenure protections for members of the NLRB, 29 U.S.C. § 153(a), on the basis that these protections place an allegedly impermissible limitation on the President’s Article II “executive Power” and charge to “take Care that the Laws be faithfully executed.” The two, represented by the National Right to Work Legal Defense Foundation, sought an injunction preventing the Board from acting on their petitions for decertification until the resolution of the lawsuit.

Board’s motion to dismiss. The Board moved to dismiss on the grounds that the tenure protections are constitutional and that, even if they are not, the two baristas are not entitled to relief because they were required to allege “compensable harm” and had failed to do so.

Dismissed. The district court granted the Board’s motion to dismiss on two grounds. First, the district court concluded that the two baristas each lacked standing because, by the time the district court entered its judgment, the Board had dismissed their petitions, and they had not yet sought reinstatement of their decertification petitions. For that reason, the district court concluded that the two failed to establish an actual or imminent injury. Second, the district court agreed with the Board that the two baristas were required to allege compensable harm and that they had failed to do so.

Appeals. On appeal, the D.C. Circuit noted, the two baristas have abandoned their claims for injunctive relief and ask the court only to declare that the Board members’ tenure protections violate Article II. For its part, the NLRB, on April 1, 2025, notified the appeals court that, “consistent with the position of the Acting Solicitor General,” it was “no longer relying on its previous argument that the statutory tenure protections for Board members are constitutional.”

Thus, summarized the D.C. Circuit, “the sole remedy [the two baristas] seek against the government is a judicial statement of law with which the government fully agrees and has already advanced in this very case.”

Insufficient adversity. The D.C. Circuit took little time in concluding that the parties are no longer sufficiently adverse to support Article III jurisdiction. “[T]o have a case or controversy, the parties must seek adverse forms of relief from the court such that the court’s judgment will ‘require [the defendant] to act,’” observed the appeals court, and “[t]hat type of adversity is missing here.”

The two baristas and the government “now fully agree,” noted the D.C. Circuit, “that the Board members’ removal protections are unconstitutional.” The baristas do not seek to enjoin the NLRB from acting, and they do not seek a declaration that the Board itself is unconstitutional. And they “have not asked this court to order the government to confer a benefit on them or to enjoin any governmental action affecting them.” Instead, they “seek only to have a court say what the government has already said—the Board’s tenure protections are unconstitutional.” Having not sought any relief from the court that the government had refused to provide, the two thus seek a declaratory judgment that “would have no ‘real-world consequences’ or ‘real meaning for the parties.’”

The district court’s judgment dismissing the case for lack of Article III jurisdiction was accordingly affirmed.

The case is Nos. 24-5152 and 24-5166.

Judge: Millett, P.

Attorneys: Aaron B. Solem (National Right to Work Legal Defense Foundation) for Ariana Cortes. Padraic Lehane for the NLRB.

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