Labor Activists in a Fix as Court Questions NLRB’s Constitutionality

[Sumona1030]

The US Court of Appeals for the Fifth Circuit has questioned the constitutionality of the National Labor Relations Board (NLRB) while granting relief to Elon Musk’s SpaceX, Energy Transfer, and Findhelp. While courts have struck down the NLRB’s decisions in the past as well, the current ruling is crucial, finding that the NLRB’s structure is somehow unconstitutional, despite its grounding in laws passed by Congress.

For context, all three companies were facing different complaints of unfair labor practices

For instance, the NLRB put forward its norway cell phone database unfair labor practices case against SpaceX after the company fired employees who had signed an open letter criticizing its billionaire Elon Musk and the sexist culture at the company.


SpaceX Challenged NLRB’s Constitutionality
SpaceX, Energy Transfer, and Findhelp filed suits in different federal courts challenging the constitutionality of the NLRB’s structure. Particularly, they challenged the dual for-cause removal protections wherein the President can remove the board members “for neglect of duty or malfeasance in office” while the administrative law judges (ALJs) can only be removed “for good cause,” as determined by the Merit Systems Protection Board (MSPB)” that too are protected by “for cause removal.”



Notably, NLRB judges cannot be removed by either the agency or the president at their will, and there has to be a proper reason behind their removal. The rule many believe runs contrary to the President’s executive powers.

Meanwhile, in all these cases, the court granted a preliminary injunction, which the NLRB appealed on two counts. First, it said that the district courts lacked jurisdiction to enjoin ongoing board proceedings. Second, it said that they abused their discretion in doing so.

Fifth Circuit Court Says Process of Removing NLRB’s ALJs Is Unconstitutional

The Fifth Circuit disagreed with both of these assertions and said that there is nothing in federal law that strips federal courts of jurisdiction to hear these claims. It also ruled that the district courts were within their discretion to grant preliminary relief.

It pointed to its previous order regarding Securities and Exchange Commission (SEC) ALJs and said, the “same analysis applies here. NLRB ALJs, too, are protected by “at least two layers of for-cause protection.” It termed the removal restrictions for NLRB ALJs “unconstitutional” even as it did not specifically say that the agency itself if unconstitutional.