The NLRB hasn’t had a smooth past year, to put things mildly. Not only did the Board spend most of 2025 without a quorum, but other outside forces threatened to intervene. First, multiple companies challenged the constitutionality of the Board’s structure. Second, some states attempted to step into the Board’s role, claiming the agency couldn’t do its job.
2026 is poised to be an extraordinarily busy year for the Board as they clear a case backlog, partially through a new docketing procedure for ULPs. Let’s look at where those outside forces stand.
SpaceX Leads the Way in Challenging the Board’s Structure
The origins of this lawsuit date back to January 2024, when SpaceX filed suit in the Fifth Circuit, alleging that the Board’s structure violates the U.S. Constitution. The Fifth Circuit Court of Appeals sided with SpaceX’s argument that the Board’s structure was likely illegal. More specifically, the court found that a law shielding against presidential removal of Board members and ALJs likely violated Article II’s separation of powers.
As a result, the Board was required to halt ULP cases against SpaceX and two other employers until their lawsuits were resolved. The case also brought regional implications in Texas, Louisiana, and Mississippi, where district courts must now follow suit in blocking ULP cases against other businesses that choose to challenge the Board’s structure.
Fast forward to late December, and surprisingly, the NLRB abandoned its case. Also, recently, the Supreme Court disallowed a motion to intervene from the AFL-CIO and the Office and Professional Employees union, so for now, SpaceX’s position stands, unless a circuit split truly pushes the issue into Supreme Court territory.
Will that happen? It’s shaping up, albeit slowly.
In a case involving a New Jersey nursing home, the Third Circuit Court of Appeals found that federal courts generally cannot grant injunctions in lawsuits “involving or growing out of a labor dispute,” according to the Norris-LaGuardia Act. The Third Circuit also “pause[d] to address” the Fifth Circuit’s reasoning in the SpaceX case and declined to adopt it. Then, in late December, the Ninth Circuit turned a critical eye toward the Fifth Circuit’s analysis while declining to review a lawsuit by a logistics company that challenged the Board’s structure regarding removal protections.
Don’t be shocked if the Supreme Court eventually steps in on the subject.
Meanwhile, States’ Attempts to Step in are Faltering
As the Board’s year without a quorum dragged on, some states attempted to take labor relations matters into their own hands. New York and California passed laws to essentially seize jurisdiction over some labor disputes – certifying union votes, adjudicating ULP charges, and resolving collective bargaining disputes – involving private employers.
These states were testing Garmon preemption, but their power plays now look to be over. A New York federal judge granted an employer’s request for a preliminary injunction barring enforcement of the state’s law. And in a late-breaking update, another federal judge granted the NLRB’s request for a preliminary injunction to block California’s law.
What Comes Next?
State efforts to act in place of the NLRB appear to have been shut down. Yet if the Supreme Court ultimately rules that the Board’s structure is unconstitutional, we can expect further chaos in labor relations.
Never say never to this happening. In 2024, the court overturned Chevron v. National Resources Defense Council, ending 40 years of Chevron deference to agencies’ legal interpretations when Congress hadn’t explicitly stated otherwise on a given law. It’s fair to say that the current Supreme Court isn’t afraid to diminish agency power, although it’s likely that only portions of the NLRA pertaining to Board structure would be removed, and the Board’s very existence is not in question.
In the year ahead, the NLRB’s focus will be getting back into its groove. General Counsel Crystal Carey and new Board members James Murphy and Scott Mayer won’t have much time to focus on anything else, but we’ll be watching for further updates on these legal challenges.
