As I covered last month, the National Labor Relations Board is no longer defending the constitutionality of the good-cause removal protections that the agency’s Members and administrative law judges enjoy. However, the agency is still arguing that employers’ requests to enjoin NLRB proceedings lack Article III standing, on the basis that any constitutional defects in the agency’s structure have not caused harm to the employers (covered here and here in the discussions of Collins v. Yellen).

Despite this retreat, most courts confronting the issue have continued to hold that the NLRB’s structure is constitutional. Gwynne Wilcox’s return to her seat on the Board, despite President Trump’s attempt to fire her (covered below), would undermine the agency’s causation argument. However, a Wilcox victory would establish on the merits that Members’ protections are constitutional, making a standing-based defense unnecessary.

Wilcox v. Trump (D.D.C.)

On Wednesday, the District Court for the District of Columbia ordered that Gwynne Wilcox be returned to her seat on the NLRB. President Trump fired Wilcox in January shortly after his inauguration, the first such firing in the agency’s 90-year history. In Wednesday’s opinion, Judge Beryl Howell called Wilcox’s removal “a blatant violation of the law,” given that the National Labor Relations Act only allows the removal of Board Members “for neglect of duty or malfeasance in office, but for no other cause.”

In short, Howell reasoned that the Supreme Court’s 1935 decision in Humphrey’s Executor blessed good-cause removal protections for NLRB Members, a conclusion shared by numerous other judges to consider the question. Howell characterized the NLRB as “quasi judicial and quasi legislative,” noting that the agency’s General Counsel (who works independently from Board Members) handles prosecutorial functions such as issuing complaints against employers and unions.

Howell explicitly rejected the “unitary executive” theory advanced by President Trump and many conservative legal scholars. Quoting past remarks by Trump himself, she wrote: “A President who touts an image of himself as a ‘king’ or a ‘dictator,’ perhaps as his vision of effective leadership, fundamentally misapprehends the role under Article II of the U.S. Constitution.”

In addition to declaring Wilcox’s firing unlawful, Howell granted injunctive relief in order to allow Wilcox to resume performing her duties. In order to avoid the potential problem of enjoining the President himself, Howell instead prohibited NLRB Chairman Marvin Kaplan and anyone beneath him from attempting to unlawfully fire Wilcox again or otherwise obstructing her work. The details of Howell’s order are available here. President Trump is appealing the decision to the D.C. circuit.

Amazon (C.D. Cal.)

Amazon sued for an injunction against the NLRB after the agency sought to compel the company to bargain with a group of California delivery drivers who had affiliated with the Teamsters (as Divya covered here). Amazon challenged Board Members’ and ALJs’ removal protections. Last month, judge Sherilyn Peace Garnett of the Central District of California denied the injunction.

Citing the District Court for the District of Columbia’s recent decision in VHS Acquisition (covered here), Garnett ruled that the Norris-LaGuardia Act barred injunctive relief against the NLRB. She concluded that Amazon’s suit fell within the broad definition of “labor disputes” which federal courts may not enjoin, because it arose from the company’s dispute with the Teamsters, even if the suit was filed against the NLRB.

Waffle House (D.S.C.)

After the Service Employees International Union accused a South Carolina Waffle House restaurant of unfair labor practices, the NLRB issued a complaint. Waffle House sued to enjoin the proceedings, alleging several constitutional defects in the agency. In a ruling last month, Judge Mary Geiger Lewis of the District of South Carolina denied injunctive relief.

Lewis first considered the Norris-LaGuardia Act. She agreed with the VHS Acquisition and Amazon courts that the suit stemmed from a “labor dispute.” However, she then held that a “literal reading” of the NLA would conflict with the spirit of the NLRA (passed three years later). The NLRA expressly states that the NLA does not bar a court from granting injunctive relief when the agency seeks an injunction against an employer or union under section 10(j) or 10(l), or when a circuit court reviews a final Board decision. Lewis reasoned that Waffle House’s lawsuit was roughly equivalent to seeking review of a final Board decision in circuit court, meaning that the NLA should not apply.

However, Lewis then rejected most of Waffle House’s claims and found that the others lacked standing or jurisdiction. The company argued that the NLRB would violate its right to a jury trial by imposing remedies of a legal nature. However, like the Northern District of Ohio in Nexstar Media (covered here), Lewis held that this claim lacked subject-matter jurisdiction. In short, Lewis reasoned that choosing which remedies to impose for unfair labor practices was a task well-suited to the agency’s expertise, and that if the Board overstepped, Waffle House could obtain effective review in circuit court, making the company’s interlocutory lawsuit inappropriate.

Waffle House also argued that the NLRB’s handling of unfair labor practice cases is biased, violating due process. For example, the company argued that the agency does not allow employers to obtain enough evidence via subpoenas and that Democratic appointees to the Board are biased in favor of unions. Lewis dismissed these claims as speculative and lacking standing. Waffle House also argued that the NLRB’s structure violates the separation of powers, but Lewis noted that the “combination of the investigative, prosecutorial, and adjudicative functions in one agency” has long been held constitutional.

Finally, relying on Collins v. Yellen (discussed above), Lewis held that Waffle House lacked standing to challenge Board Members’ and ALJs’ removal protections, regardless of their constitutionality.

SpaceX (Fifth Circuit)

In early 2024, SpaceX was among the first employers to challenge the NLRB’s constitutionality after being accused of unfair labor practices. After a protracted venue battle in which the agency sought to transfer the suit to California, SpaceX managed to keep the case in the Southern District of Texas (covered here). On April 26, SpaceX asked the court to enjoin the underlying agency proceedings “no later than May 2.” On April 30, the company appealed to the Fifth Circuit, arguing that the Southern District of Texas had “effectively denied” its injunction request. The Fifth Circuit did then enjoin the agency.

On Wednesday, a Fifth Circuit panel ruled that the district court did not “effectively deny” the injunction, chiding the company for attempting to contrive an interlocutory appeal. The panel found that SpaceX’s May 2 deadline was arbitrary: an NLRB ALJ was set to discuss subpoena disputes with the company that day, but SpaceX had joined multiple such meetings already and was not expected to produce any evidence or defend itself on the case’s merits during the meeting.

Furthermore, the panel found that SpaceX needlessly told the Southern District of Texas about this deadline with less than one week’s notice, and then appealed before the deadline even arrived. Finally, the panel noted that SpaceX could hardly ask the district court to rule faster on its injunction request when the company itself had embroiled the court in procedural disputes, including over the case’s venue.