NLRB, ALJs facing existential challenges

Since the Supreme Court’s rulings in Loper Bright and Jarkesy, employers have wondered to what degree the High Court’s rulings would affect the National Labor Relations Board (NLRB), which has long regarded itself as being apart from the concerns facing other agencies. Recent actions by the courts, however, have begun to challenge the Board’s self-regard.

Perhaps the most successful Supreme Court challenge to the Board involved its standards for seeking 10(j) injunctions. In a ruling perhaps more important for its implications than its outcome, the Court stripped the Board of its special status and directed federal judges to treat the Board’s requests for injunctions the same way they would any other petition for a preliminary injunction. The Board’s special status had been frequently cited as a protection from judicial intervention post-Loper Bright. That is in serious doubt.

Jarkesy and the NLRB

In the wake of Jarkesy, employers faced with unfair labor practice charges have begun raising constitutional challenges both to the NLRB’s authority to impose monetary penalties and to the basic legality of its quasi-judicial structure. The fact that NLRB administrative law judges (ALJs) are protected from removal by the president without a finding of “good cause” by the Merit System Protections Board and the NLRB members’ consent has been a particular target of the litigants.