Fifth Circuit: NLRB’s Structure Is Unconstitutional. Acting GC: ‘We’ve Got This.’: LRI INK

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Subject: Fifth Circuit: NLRB’s Structure Is Unconstitutional. Acting GC: ‘We’ve Got This.’: LRI INK

August 21, 2025

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Fifth Circuit: NLRB’s Structure Is Unconstitutional. Acting GC: ‘We’ve Got This.’

by Kimberly Ricci

Are you weary of living in the unprecedented tangled mess of labor law yet? Don’t take your seatbelt off because the ride ain’t over yet. This year’s NLRB chaos has left employers without guidance on certain disputes with a hefty clean-up to come, and for those who thought that the Board’s lack of quorum would be the apex of this disarray, well, we’ve got some updates.

The Fifth Circuit Court of Appeals and Acting General Counsel William B. Cowen both have “hold my beer”-style responses that set up a two-pronged twist on this question: “Who’s running labor law?”

SpaceX Challenge Against The NLRB Stands:

This week, the Fifth Circuit sided with SpaceX’s argument that the Board’s structure could violate separation of powers. More specifically, the court found that a law shielding against presidential removal of Board members and administrative law judges is seemingly illegal. As a result, the Board must halt ULP cases against SpaceX and two other employers, Energy Transfer and Aunt Bertha, until their lawsuits are resolved.

Although the NLRB will surely challenge this finding, the update carries regional implications in Texas, Louisiana, and Mississippi, where district courts would now accordingly block ULP cases against other businesses that choose to challenge the Board’s structure.

It’s good news for employers, and elsewhere, the Fifth Circuit made another business-friendly finding by reversing a previous Board decision on an Apple case. In doing so, the Fifth Circuit found that the tech giant did not “unlawfully confiscate union literature” by removing it from a retail store breakroom as part of a blanket policy not to leave written materials behind.

The Acting GC’s Response To State Action:

You’d be correct if you guessed that the Board isn’t impressed by states pushing for jurisdiction over some labor disputes – certifying union votes, adjudicating ULP charges, and resolving collective bargaining disputes – involving private employers. Through their state legislators, California and New York are putting Garmon preemption to the test, and Acting General Counsel William B. Cowen isn’t having it.

Cowen issued a statement, in which he cites Garmon and brushes off those who question the Board’s current and future ability to function:

“Any concern that the National Labor Relations Board is unable to fulfill its statutory duties under the Act is unfounded. Indeed, the work of the NLRB has largely been unaffected by the temporary absence of a Board quorum.”

Further, Cowen asserted that “over 95% of all cases are processed without requiring a Board decision.” He also believes that the Board should have no problem in swiftly clearing its case backlog once a quorum is restored.

Conclusion: And now, we wait. Not only does this refer to the time before Trump’s NLRB nominees pass Senate muster, but it is also an apparent move by Big Labor itself.

A recent Bloomberg Law analysis points toward a "wait and see" approach for unions, which have filed fewer petitions during the first half of 2025 as compared to last year. This hesitation likely has much to do with the current economic climate, in which high workplace turnover might hamper collective action, but also, unions aren’t enjoying the NLRB backlog either.

Clarity on the Board’s ability to function will eventually come, but for now, the Fifth Circuit’s employer-friendly news can carry the day.

Blog Post

Labor Isn’t Automatic for Democrats Anymore

by Michael VanDervort

For generations, unions were the Democratic Party’s most dependable ally. Not anymore. In 2024–25, labor’s political identity fractured — sparked by leadership walkouts at the DNC, the Teamsters’ embrace of Republicans, conditional endorsements in Nevada, open fights with Democratic governors, and a federal-level assault on collective bargaining rights. The old “labor = Democrats” formula looks shakier than ever.

The Teamsters’ Republican Turn

Sean O’Brien became the first Teamsters president to address the Republican National Convention in 2024.
The union refused to endorse a presidential candidate for the first time since 1996.
By 2025, the Teamsters’ PAC (D.R.I.V.E.) was sending money to GOP candidates, reflecting internal polling that showed 60% of members leaned toward Trump versus 34% for Harris.

This was not a stunt. It was a reset.

Union Leaders Walk Out of the DNC

Randi Weingarten (AFT) and Lee Saunders (AFSCME) resigned from the DNC’s executive leadership, blasting the party for ignoring working-class priorities and playing insider politics. Their exit underscored a clear point: Democrats no longer get a free pass from labor.

Governors in the Crosshairs

In California, Minnesota, and Colorado, unions are battling over labor issues with Democratic governors rumored to be 2028 presidential contenders. These are not abstract spats; they’re labor contract fights that could shape the next national race.

Conditional Loyalty in Nevada

The Culinary Union delivered a landmark Strip-wide deal with 32% raises over five years and full casino unionization. They also yanked endorsements from 17 Democratic lawmakers over hotel-cleaning rules. Support from labor now comes with strings attached.

Federal Workers Under Fire

Trump’s 2025 executive order sought to strip union rights from two-thirds of the federal workforce.

Workers called it an attempt to silence them.
A federal judge later blocked the order, but the fight is far from over, as SCOTUS allowed the terminations to proceed in July.

It’s a reminder that labor battles run straight through Washington.

Rebuilding Trust With Members

Union leaders know part of the problem is not just politics, but also credibility.

Lee Saunders (AFSCME) is leaning into member engagement and working overtime to reconnect with their members: 70+ town halls, podcasts, TikTok filters, and partnerships with content creators to make labor relevant to push content to members, especially younger workers.
Jimmy Williams (IUPAT) is pushing “Building Union Power,” a campaign that takes the union on the road to reconnect with members, retell the history of labor’s wins, and listen when members feel ignored. “Some people only hear from their union around Election Day,” Williams said. “If they’ve had a negative experience or felt ignored, we’re going to hear them out and work to make it right.”

Both efforts reflect a reality: if unions do not invest in rank-and-file trust, no political strategy will hold.

Where It’s Headed

1. Labor will play on both sides.
O’Brien’s RNC debut showed unions are done being tied to one party. Expect more transactional politics: jobs, trade, and protections in exchange for political backing.

2. Democrats can no longer assume support.
DNC resignations, unendorsed candidates in Nevada, and statehouse disputes show every relationship must be earned.

3. Republicans see an opening.
Even as they advance policies less favorable to union leaders, GOP strategists see value in courting working-class voters and union dollars.

4. Members are driving the shift.
Polling and grassroots frustration explain why leadership is scrambling with podcasts, influencers, and campaigns like Building Union Power.

5. State-level fights will shape 2028.
Governors with presidential ambitions will need labor’s sign-off, and unions are not afraid to bruise their own party’s rising stars.

The Destination

We’re not headed toward a clean “labor = Republican” flip. Instead, unions are becoming political free agents: spreading bets, demanding results, and punishing politicians who don’t deliver.

For Democrats, their oldest coalition partner is no longer automatic.
For Republicans, an opportunity to attract new voters and allies like O’Brien.
For employers, a warning: unions will likely be bolder, more political, and less predictable.

The big picture: labor has stopped being a partisan wingman. It’s becoming a free agent.

Blog Post

AI for All: From Hospitality To Healthcare, ‘Agentic’ Leadership Strategies That Work in Any Industry

by Kimberly Ricci

Chances are that you’ve heard a ton of AI buzzwords lately. One of those terms, “agentic,” is based upon AI’s ability to problem solve and complete tasks with minimal human oversight, which might sound daunting and not entirely comforting for those who have watched Terminator 2: Judgment Day – “Hasta la vista, baby” – at any point during the past few decades.

Nonetheless, AI is here to stay, as is the agentic concept. And assuming that the AI tools in question are ethically vetted and trained upon human judgment, leaders should encourage their workers to embrace AI as a helper for streamlining workloads and an advisor for generating and testing ideas. It’s also essential to keep upskilling with AI tools, not only because the competition is already doing so, but because AI isn’t going away.

The catch, however, is whether leaders feel comfortable taking that same leap, yet there’s every reason to do so. AI will help leaders stay nimble, quickly make data-informed decisions, and predict problems before they occur. AI will also free up time and energy for the more “human” parts of leadership, like strategizing, developing teams, and fostering culture.

Here’s how that is shaking out in different industries:

Healthcare: Hospital administrators can focus on staff well-being and workplace culture while relying on AI to predict patient-intake surges and analyze staff-to-patient ratios. This allows doctors and nurses to plan workflows more effectively and produce better patient outcomes.

Retail: Managers can focus on creating customer experiences and enhancing brand awareness while AI optimizes inventory, manages staffing levels, and monitors trends and gaps in consumers’ buying behavior.

Cannabis: Leaders can keep their eyes on this rapidly evolving industry’s constant regulatory shifts, which won’t be ending anytime soon. Meanwhile, AI can do the dirty work of predicting crop yields, analyzing growing conditions, optimizing delivery routes, and ensuring adequate staffing.

Telecommunications and energy: Leaders can target their efforts to expand market share, customer retention, and strategic partnerships. Meanwhile, AI network analytics can optimize bandwidth and detect service disruptions before they disturb customer experiences.

Hospitality: Leaders can invest their energy in ensuring guest satisfaction, training workers, and creating personalized experiences while allowing AI to carry out booking and revenue-focused tasks, thereby optimizing pricing, predicting demand, and analyzing staffing needs.

Logistics: Executives can focus on team development and service innovation, while AI algorithms can plot effective routes, which will lead to faster delivery times and lower fuel costs.

In other words, AI can make it possible for leaders to maintain their human touch and to use their time to lead. Welcome to the future.

Takeaways for leaders:

(1) Stay nimble: Upskilling will never end, so stay adaptable and keep your eyes out for more AI tools worth integrating.

(2) Remain accountable: AI isn’t meant to replace human leaders, who will make final decisions based upon AI output while keeping an organization’s mission and values intact.

(3) Inspire others: Workers will be more likely to embrace AI in their roles after watching you do the same.

(4) Ascend to higher heights: AI will be your strategic partner, allowing your leadership to reach greater potential.

Blog Post

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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.

If you use content from this newsletter, please attribute it to LRI Consulting Services, Inc. and include our website: http://www.LRIonline.com

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

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About LRI Consulting Services, Inc.

LRI Consulting Services, Inc. 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 40 years, LRI Consulting Services, Inc. has led the labor and employee relations industry, driven by our core values and our proven process, the LRI Way.

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Subject: Fifth Circuit: NLRB’s Structure Is Unconstitutional. Acting GC: ‘We’ve Got This.’: LRI INK