The Fifth Circuit Court of Appeals recently held that the statutory removal protections for members and administrative law judges of the National Labor Relations Board are likely unconstitutional under separation of powers principles. The Court determined that these protections deprive the President of the necessary level of control over officers of the executive branch. Based on that determination, the Court affirmed the district courts’ granting of preliminary injunctions, which halted NLRB proceedings in several cases. The Court determined that by facing “unconstitutional agency authority[,]” the employers suffered irreparable harm.
This decision has the immediate impact of providing employers facing NLRB proceedings in the Fifth Circuit—which includes Louisiana, Mississippi, and Texas—with the option of petitioning for similar relief. Notably, the decision creates a circuit split with the Tenth, Sixth, and Second Circuits, which have held that aggrieved parties must show that the unconstitutional removal provision interfered with the underlying proceedings in order to obtain injunctive relief. The circuit split may prompt the Supreme Court to consider the matter, which could have a nationwide impact on the NLRB’s enforcement authority so long as the statutory removal protections remain in place, or could result in the President having the authority to unilaterally fire NLRB members and ALJs (along with officials in other agencies who currently enjoy similar protections). When it recently ruled that NLRB Member Gwynne Wilcox could not return to her position pending her legal challenges to her termination, the Supreme Court signaled an inclination to find the removal protections unconstitutional if presented with the issue. In addition to the recent Fifth Circuit decision, Wilcox’s appeal in the D.C. Circuit is a candidate for the case on this issue that ultimately reaches the Supreme Court.
Employers presently involved in NLRB matters should be aware of the potential impact these developments may have on their cases. If you have any questions about this recent ruling or how it may impact your business, please contact a member of the McNees Labor & Employment group.