Are you weary of living in the unprecedented tangled mess of labor law yet? Don’t take your seatbelt off because the ride ain’t over yet. This year’s NLRB chaos has left employers without guidance on certain disputes with a hefty clean-up to come, and for those who thought that the Board’s lack of quorum would be the apex of this disarray, well, we’ve got some updates.
The Fifth Circuit Court of Appeals and Acting General Counsel William B. Cowen both have “hold my beer”-style responses that set up a two-pronged twist on this question: “Who’s running labor law?”
SpaceX Challenge Against The NLRB Stands:
This week, the Fifth Circuit sided with SpaceX’s argument that the Board’s structure could violate separation of powers. More specifically, the court found that a law shielding against presidential removal of Board members and administrative law judges is seemingly illegal. As a result, the Board must halt ULP cases against SpaceX and two other employers, Energy Transfer and Aunt Bertha, until their lawsuits are resolved.
Although the NLRB will surely challenge this finding, the update carries regional implications in Texas, Louisiana, and Mississippi, where district courts would now accordingly block ULP cases against other businesses that choose to challenge the Board’s structure.
It’s good news for employers, and elsewhere, the Fifth Circuit made another business-friendly finding by reversing a previous Board decision on an Apple case. In doing so, the Fifth Circuit found that the tech giant did not “unlawfully confiscate union literature” by removing it from a retail store breakroom as part of a blanket policy not to leave written materials behind.
The Acting GC’s Response To State Action:
You’d be correct if you guessed that the Board isn’t impressed by states pushing for jurisdiction over some labor disputes – certifying union votes, adjudicating ULP charges, and resolving collective bargaining disputes – involving private employers. Through their state legislators, California and New York are putting Garmon preemption to the test, and Acting General Counsel William B. Cowen isn’t having it.
Cowen issued a statement, in which he cites Garmon and brushes off those who question the Board’s current and future ability to function:
“Any concern that the National Labor Relations Board is unable to fulfill its statutory duties under the Act is unfounded. Indeed, the work of the NLRB has largely been unaffected by the temporary absence of a Board quorum.”
Further, Cowen asserted that “over 95% of all cases are processed without requiring a Board decision.” He also believes that the Board should have no problem in swiftly clearing its case backlog once a quorum is restored.
Conclusion: And now, we wait. Not only does this refer to the time before Trump’s NLRB nominees pass Senate muster, but it is also an apparent move by Big Labor itself.
A recent Bloomberg Law analysis points toward a “wait and see” approach for unions, which have filed fewer petitions during the first half of 2025 as compared to last year. This hesitation likely has much to do with the current economic climate, in which high workplace turnover might hamper collective action, but also, unions aren’t enjoying the NLRB backlog either.
Clarity on the Board’s ability to function will eventually come, but for now, the Fifth Circuit’s employer-friendly news can carry the day.
