Fifth Circuit Thinks NLRB Might be Unconstitutional

A recent Fifth Circuit Court of Appeals ruling has made it easier for employers to halt ongoing NLRB unfair labor practice (ULP) proceedings—so long as they sue in Texas, Louisiana, or Mississippi, the states within the Fifth Circuit. The court held that SpaceX and two other companies challenging the constitutionality of the NLRB’s structure were entitled to preliminary injunctions stopping their NLRB cases.

Because of broad jurisdictional standards, employers have been able to file lawsuits in the Fifth Circuit even when the underlying labor cases come from other states—such as Amazon suing in Texas over a New York union dispute, or SpaceX filing in Texas over a California case. Judges in the Fifth Circuit have declined to transfer several such cases back to their states of origin.

Unless the Fifth Circuit revisits the issue en banc, the situation likely won’t be resolved until the U.S. Supreme Court decides the upcoming Wilcox case, according to former NLRB General Counsel Jennifer Abruzzo.