Subject: Trump’s NLRB Shakeup: A Legal Mess That’s Just Getting Started: LRI INK

February 6, 2025

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Trump’s NLRB Shakeup: A Legal Mess That’s Just Getting Started

by Michael VanDervort

President Donald Trump didn't waste time making waves at the National Labor Relations Board (NLRB). His decision to fire Democratic board member Gwynne Wilcox and General Counsel Jennifer Abruzzo is already triggering legal battles, and it’s shaping up to be a long, messy fight over how much control the president has over independent agencies.


The NLRB Firings That Kicked Off the Chaos

On January 28, 2025, Trump removed Wilcox and Abruzzo, both appointed by Democrats, arguing that the NLRB had gone too far in restricting employers’ rights. In an email from the White House, Trump made it clear he wasn’t interested in the usual rules that protect NLRB members from arbitrary removal. He cited Article II of the Constitution, claiming that any restrictions on his ability to fire board members don’t hold up under his executive authority.


Basically, Trump is saying the president should have free rein to remove agency officials whenever they don’t align with his administration’s goals. He even pointed to the Supreme Court’s Seila Law LLC v. CFPB (2020) decision, which allowed the president to remove the Consumer Financial Protection Bureau’s director as justification.


Wilcox Isn’t Going Quietly

Wilcox isn’t just accepting Trump’s decision—she’s suing. Her lawsuit, filed in the U.S. District Court for the District of Columbia, argues that her removal violates the National Labor Relations Act, which only allows the president to fire board members “upon notice and hearing, for neglect of duty or malfeasance in office.”


In her statement, Wilcox made it clear that she believes this is about more than just her job. “When Congress established the National Labor Relations Board almost 90 years ago, it made sure that the law would protect its independence from political influence,” she said. Her case could end up being a test of how much power presidents actually have over agencies like the NLRB, with some legal experts predicting it will go all the way to the Supreme Court.


The Fifth Circuit’s SpaceX Case and the Bigger Picture

Meanwhile, the Fifth Circuit is already dealing with another case that could impact this fight. SpaceX and other employers have argued that the NLRB’s structure is unconstitutional (Paywall), claiming that its members and administrative law judges have too much job protection. The Fifth Circuit has been a hotbed for cases like this, and legal experts think it’s setting the stage for another big Supreme Court showdown.


To make things even more interesting, Elon Musk, a Trump adviser, runs SpaceX, adding another layer of political drama to the situation. If the Fifth Circuit rules in favor of SpaceX, it could give Trump even more ammunition in defending his decision to fire Wilcox and Abruzzo.


A New Acting General Counsel Steps In

Adding another twist, on February 3, 2025, Trump appointed William B. Cowen as the new acting general counsel of the NLRB. Cowen, who has been with the NLRB since 1979 and previously served as a board member in 2002, was the regional director of the Los Angeles office before this appointment. This move comes after Trump fired Abruzzo and her brief successor, Deputy General Counsel Jessica Rutter. 


What’s Next?

So, where does this all go from here? The lawsuits are piling up for now, and it’s only a matter of time before higher courts weigh in. If Wilcox’s case moves quickly, we could see the Supreme Court take another look at Humphrey’s Executor v. United States, the 1935 case that gave independent agencies some protection from presidential interference.


Whether or not the courts side with President Trump, one thing’s clear: the fight over the NLRB isn’t ending anytime soon.

 Union-Busting or Worker Choice? The Reality Behind John Logan’s One-Sided Take

by Michael VanDervort

John Logan’s Corporate Union Busting in Plain Sight reads like a Hollywood script: scrappy workers versus villainous corporations, democracy under attack, and big bad companies scheming to keep employees under their thumbs. But in the real world, the story is far more complicated—and Logan’s version ignores the most significant piece of the puzzle: many workers simply don’t want unions.


The Truth About Union Decline: Workers Are Opting Out

Logan wants readers to believe union membership is dwindling because of “ferocious corporate opposition.” But here’s a reality check: if anti-union employer behavior were the driving force behind low union density, we’d see union victories surge now that the National Labor Relations Board (NLRB) is more pro-union than in decades. Instead, union membership has barely budged.

The often-cited EPI claim that “60 million American workers want a union” sounds impressive—until you realize this supposed demand hasn’t translated into membership growth.


When given the choice, workers are increasingly skeptical of what unions offer. In industries like retail and hospitality, flexibility matters more than rigid contracts. Workers are weighing their options and deciding that a union might not be the golden ticket organizers claim it to be.


No Contracts? Blame the Unions, Not the Companies

Logan paints Starbucks, Amazon, and Trader Joe’s as relentless anti-union machines, stalling contract talks and refusing to bargain in good faith. But let’s take a step back: if unions have such strong worker support, why haven’t they been able to deliver results?


Take Starbucks. There's still no contract over three years after workers at some stores voted to unionize. Is this all because of corporate “union busting”? Or could it be that Workers United has fumbled negotiations, prioritized media theatrics over serious bargaining, and so far failed to prove they can deliver better wages and benefits than Starbucks already offers? The company has been clear: they’ll negotiate with each store individually, which is perfectly legal.


The union, on the other hand, has pushed for centralized bargaining—something that isn’t required under labor law. If Starbucks is truly the villain, why hasn’t the union managed to get a single deal inked?


“Union-busting” Is Just Another Word for Employer Free Speech

Logan takes issue with companies communicating with their employees about unions. But let’s call this what it really is: giving workers the whole picture.

Employers have every right to explain the potential downsides of unionization, just as unions have every right to pitch their own case. The assumption that workers are easily “intimidated” into rejecting unions is deeply patronizing. People are capable of making informed decisions, and the fact that union wins aren’t happening at the rate organizers expect suggests that workers aren’t being “tricked” or “scared”—they’re just not convinced.


Weak Labor Laws? Try Again—The System Is More Pro-Union Than Ever

Logan’s claim that U.S. labor laws are “disastrously weak” is laughable. Under the Biden administration, the NLRB has stacked the deck in favor of unions, making it easier than ever for workers to organize and harder for employers to push back.


Take the Cemex ruling: it essentially allows the NLRB to force companies to recognize unions without even holding an election if an employer is accused of unfair labor practices. That’s a seismic shift in labor law, yet Logan still insists that corporations have all the power.


And let’s not forget: the NLRB has been aggressively targeting companies with complaints, courts are increasingly ruling in favor of labor, and unions have been handed a series of regulatory wins. The idea that employers can “break the law with no consequences” ignores the multi-million-dollar legal battles companies face when fighting unionization efforts.


Corporations Have a Right to Defend Themselves

At the heart of Logan’s argument is a troubling premise: that companies shouldn’t be allowed to resist unionization. He treats basic corporate advocacy—hiring attorneys, pushing back against union demands, communicating with employees—as somehow illegitimate. But here’s the thing:


Businesses, like unions, have every right to advocate for their interests.

Workers are not passive pawns in this fight. They’re active participants who get to make a choice. And when unions can’t win without the government tilting the playing field in their favor, maybe—just maybe—the problem isn’t “union busting.” It’s the unions themselves.


Bottom Line: The Market Has Spoken

If unions were truly the better option, they wouldn’t need new laws, government intervention, or claims of corporate wrongdoing to stay relevant. Workers would be flocking to join them. Instead, union membership remains stagnant, even as labor activism is at its highest level in years.


Logan’s article isn’t analysis—it’s activism. Instead of blaming corporations for union failures, maybe labor leaders should be asking a harder question: why aren’t workers buying what unions are selling? Until they figure that out, all the finger-pointing in the world won’t change the fact that organized labor’s biggest problem isn’t employer opposition—it’s worker indifference.

New Visa Restrictions On Healthcare And Higher Ed: Trump’s Policies Could Fuel Unknowns

by Kimberly Ricci

President Trump’s recent executive order blitz rocked the labor landscape and could spread from the federal government to the private sector. Those orders cover topics from RTO mandates to dismantling DEI programs in federal workplaces. Similarly, Trump’s EOs aimed at visa restrictions could hit the healthcare and higher education industries hard.


From physicians to nursing assistants and professors to students, tensions are running high. And if these new visa requirements cause further labor shortages in both industries, unions could easily take advantage of workers’ frustrations and increase their efforts on the organizing front.


U.S. dependence on physician immigration: At least 1 in 4 doctors are foreign-born and are more likely to practice in rural areas, and their route to doing so is intensive. Regardless of their qualifications or career histories, these physicians must complete a residency in the U.S., a step that could last seven years, depending on the practice. They must do so after obtaining student or tourist visas, which ordinarily isn’t difficult for physicians. It’s a small measure of relief for these residents who earn low salaries while juggling licensing exams, applications for residency, and visas.


However, Trump’s EO on visas could make the process more laborious by mandating a stricter and more enhanced process for every applicant. It’s not hard to imagine this as a disincentive for foreign-born physicians to seek an American practice, and this will not lessen the existing physician shortage that is growing as the U.S. population ages.


Elder care: Even more acutely, the potential impacts of Trump’s mass deportation plans and visa EO could exacerbate existing labor shortages of nursing assistants. One center’s administrator revealed that 40% of their workers are first-generation immigrants; that figure rises to 84% for certified nursing assistants who provide basic yet crucial care for disabled patients in facilities and at-home care settings.


The need for more CNAs is urgent. In particular, California “estimates that by 2030, a quarter of the state’s population will be at least 60 years old,” and a Harvard Medical School professor put it this way: “Immigration policy is long-term care policy.”


International students and professors: Following campaign promises of an immigration crackdown, U.S. universities advised international students to return to campus before the inauguration.  The EO on visas could potentially impact hundreds of thousands of current international students, especially those who protest Trump’s policies. The president also recently vowed to deport pro-Palestinian, non-citizen protesters.


Another education wrinkle: Under Trump, the number of H-1B visas granted to highly educated foreigners could change. If that number decreases, universities will struggle to recruit foreign faculty members, particularly in science and tech fields. Presumably, these visas are not at as much risk as student visas, given that H-1Bs benefit the U.S. economy by making the recruitment of top global talent possible.


Conclusion: With policy shifts coming fast and furious, healthcare and higher education employers must recognize that worker worries are running rampant. These changes will also impact companies, including when unions make false promises to help workers affected by these policies. Please don’t put it past a union to try doing so, and now, more than ever, employers must keep lines of communication open with workers and navigate these uncharted waters together.

Now Available For Pre-Order: The Leader-Shift Playbook

by Phillip B. Wilson

Modern Leadership: Lessons from The Leader-Shift Playbook

by Michael VanDervort

Modern Leadership Requires a Shift


What does it take to be an effective leader in today’s rapidly evolving workplace?


On this At Work in America episode, Phillip B. Wilson joined hosts Trish Steed and Steve Boese to discuss key takeaways from The Leader-Shift Playbook, his upcoming book on leadership transformation:


🔹 How can leaders adapt to change without losing their teams?

🔹 What leadership habits drive results?

🔹 Why is ‘shifting’ your mindset critical for long-term success?


We break it all down in this conversation.


Tune in to the full episode here: 👇

🎧 Modern Leadership Lessons from The Leader-Shift Playbook


The Starbucks Contract Struggle Will Head To Mediation, But With No Touchdown In Sight

by Kimberly Ricci

Over the holidays, Starbucks Workers United (SBWU) called a five-day strike for baristas to protest stalled-out contract negotiations after the union and company revived talks in 2025. Reportedly, progress was made, but nine months of meetings still didn’t yield a first-contract framework.


This nine-state strike qualified as technically the largest walkout in the union’s history but only affected about 500 out of 10,000+ U.S. locations. Frustrated baristas headed back to work without meaningful results. Undoubtedly, new CEO Brian Niccol would like to put this conflict in the rearview mirror and turn his focus to desired operational changes for the company that could slow union momentum in the long run.


Recently, former NLRB Chair Wilma Liebman suggested that Starbucks should agree to mediation in order to shore up the company’s willingness to come to the table. Last week, both parties agreed to mediation to work on a first-contract framework that would then be applied at the store level. According to the joint statement, both parties “are committed to continuing to work together — with a mediator's assistance — to navigate complex issues and reach fair contracts.”


Meditation could finally bring solutions, but if a deal still doesn’t happen, this could place SBWU’s plentiful demands under more scrutiny. Their many stipulations include a base wage of $20 per hour for baristas; annual raises of 5% plus COLA benefits; generous healthcare insurance policies paid 100% by the company; and enough paid holidays, sick days, and vacation days to fill an entire month each year; and so on.


It’s a lot to consider. Of course, contract demands do happen with the understanding that not every request will come true. Specifically, Starbucks countered the union’s wage demands by pointing out that their current average barista pay of $18 per hour + benefits is effectively worth $30 per hour. Further, Starbucks called the union’s demands for wages and benefits unsustainable from a business standpoint.


Still, a desirable result happened with the mediation news, which immediately led to mutually dropped lawsuits from Starbucks and SBWU, which also notched three dozen ULP filings in one day this month.


Where does that leave the Starbucks organizing drive? It is in flux, with several union wins over the past weeks and more petition news each week. Notably, about a quarter of the 500+ SBWU wins have happened in the past year, to be measured against dozens of decertification efforts, as noted by Starbucks. Buyer’s remorse has hit many baristas, even if Biden’s NLRB has largely blocked those efforts to jump from the union ship.


Clearly, this situation is more complicated than Starbucks workers planned for when the coffeehouse giant’s first unionized location made headlines over two years ago. Disappointment abounds from workers who expected contracts much sooner. With the average first contract taking more than a  year to secure, SBWU still has zero contracts to speak of—despite the union’s bluster—which could eventually cause pause for Gen Z workers when unions come knocking with big promises.


Stories You May Have Missed:


Independent regulators in 'real danger' after Trump firings, say ex-NLRB chairs

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President Trump Appoints William B. Cowen Acting General Counsel of the National Labor Relations Board

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Costco, Teamsters negotiating committee reach tentative agreement

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Costco and Walmart Workers Get A Pay Raise

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Unionized physician residents: How might it change care?

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About Labor Relations INK

Labor Relations INK is published weekly and is edited by LRI Consulting Services, Inc. Feel free to pass this newsletter on to anyone you think might enjoy it. New subscribers can sign up by visiting here.


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Contributing editors for this issue: Greg Kittinger, Michael VanDervort, and Kimberly Ricci.


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About Labor Relations Institute

LRI exists to help our clients thrive and become extraordinary workplaces. We improve the lives of working people by strengthening relationships with their leaders and each other. For over 41 years, LRI has led the labor and employee relations industry, driven by our core values and our proven process, the LRI Way.

 

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