Another Crack in the NLRB’s Foundation

This is the most consequential labor-law story going, and it isn’t really about one employer. It’s about whether the NLRB, as currently built, can keep doing what it does.

A Texas federal judge just permanently blocked the NLRB from prosecuting an employer — not over the facts, but over the agency’s structure.

Judge Mark Pittman (N.D. Tex.) granted summary judgment to Findhelp, an online social-services platform the Board accused of firing union organizers. The ruling never reaches that question. Instead, Pittman held that the job protections shielding NLRB administrative law judges — and Board members themselves — from presidential removal are unconstitutional.

The reasoning, drawn from the Fifth Circuit’s SpaceX decision: ALJs and Board members wield real executive power — investigating, prosecuting, and adjudicating under one roof — yet sit largely beyond the President’s removal authority. That, the court said, falls outside the narrow exception from the Supreme Court’s 1935 Humphrey’s Executor decision. Pittman also found the Board’s in-house adjudication violated Findhelp’s Seventh Amendment right to a jury trial.

Notably, he refused to “fix” the agency by simply waving off the removal rules — saying any repair would mean rewriting statutes Congress wrote, which isn’t a court’s job.

There is now a circuit split. The Fifth Circuit lets employers freeze NLRB cases on these grounds; the Third and Ninth say the Norris-LaGuardia Act blocks those injunctions. When the circuits divide on a question this fundamental, the Supreme Court usually steps in to settle it. And US Supreme Court law is the only law the NLRB’s Regions and ALJs are allowed to follow (besides its own laws), meaning, the Board is not allowed to pick which interpretation it wants to follow, the Fifth or the Third / Ninth.