The Courts Are Reining In the NLRB

Two recent decisions, same theme: judges are done deferring to the Board.

First, emergency injunctions. After the Supreme Court’s McKinney ruling, the NLRB can’t just presume harm when it asks a court for 10(j) relief. The Sixth Circuit drove it home in the Trinity Health case — the Board now needs evidence of concrete, immediate harm, not just “this interferes with organizing.” For employers in Michigan, Ohio, Kentucky, and Tennessee, that’s a real welcomed shift.

Second, the NLRB structure itself. A Texas court in the Findhelp case permanently blocked an NLRB proceeding, finding the removal protections for ALJs and Board members raise separation-of-powers problems — and that the Board’s damages demands may require a jury. Another massive win for employers who routinely face an uphill battle before the NLRB.

Basically, the Board’s authority is being tested from both directions: how it enforces, and whether its structure passes constitutional muster.

Both rulings will be appealed. But the deference era looks like it’s ending.

Do you think either of these cases will survive the appeal?