In today’s news and commentary, NLRB stops defending removal protections but continues defending against injunctions; and Colorado legislature considers ending right-to-work.

The NLRB has announced that it will no longer defend the constitutionality of the good-cause removal protections shielding Board Members and the agency’s administrative law judges. After a Missouri company was accused of unfair labor practices and challenged the agency’s constitutionality in federal court, NLRB lawyers notified the judge on Friday that they have modified their litigating position to align with the views asserted by President Trump’s Acting Solicitor General, namely that the President must be able to fire anyone in the executive branch at will.

However, the NLRB also indicated that it will continue to defend itself against these constitutional suits: not because the removal protections at issue are constitutional, but because the plaintiffs have not shown that the protections caused them any injury, meaning that the plaintiffs lack standing. For a longer explanation of this standing issue, see the discussion of Collins v. Yellen in OnLabor’s Tracking Attacks on the NLRB series.

Colorado’s legislature has taken steps to repeal the state’s quasi-right-to-work law, countervailing a recent trend of antiunion laws in other states like Utah and South Dakota. While a typical right-to-work law prohibits union security agreements entirely, Colorado’s law requires any union security agreement to be ratified by 75% of a bargaining unit. A similar effort to repeal the law almost succeeded in 2007, but Colorado’s Democratic governor at the time vetoed the bill. Colorado’s current Democratic governor, wealthy former businessman Jared Polis, has likewise expressed skepticism about the current repeal effort.