Employment / 1 min read
In a decision that will likely be ultimately resolved by the United States Supreme Court, the United States Court of Appeals for the Fifth Circuit held the National Labor Relations Board ("NLRB") is unconstitutionally structured, invalidating the NLRB's authority to prosecute unfair labor practices charges.
In companion cases brought by SpaceX and two other employers, each of which had been charged with unfair labor practices, the Fifth Circuit affirmed district court injunctions preventing the NLRB from proceeding with unfair labor practice charges due to this structural defect. In the Fifth Circuit's view, the multilayer, for-cause removal restrictions placed on Administrative Law Judges and NLRB Board Members impermissibly infringe the President's Article II duty to take Care that the Laws be faithfully executed.
The decision, or a similar litigation, is virtually certain to be appealed to the United States Supreme Court. While the NLRB's enforcement authority may be currently restricted, Employers must continue to comply with their obligations under the National Labor Relations Act ("NLRA"), which is still valid law.
Practical Considerations for Employers in Texas, Louisiana, and Mississippi:
- Continue to comply with the NLRA notwithstanding the current enforcement uncertainty;
- Consider asserting a constitutional affirmative defense in any answer to an unfair labor practice complaint; and
- Consider requesting a stay from the administrative law judge or pursuing injunctive relief federal district court in an unfair labor practice proceeding.
Until the United States Supreme Court, or Congress, provides further guidance, Employers should stay informed of developments, and consult counsel before charting litigation strategy in any NLRB proceeding.