It hasn’t been a great month for one Las Vegas employer. First, Supreme Court Chief Justice John Roberts declined Red Rock Casino Resort and Spa’s request to pause a Gissel bargaining order upheld by the D.C. Circuit, so Red Rock must negotiate with the Culinary Union while awaiting further review of that case. Then a federal district judge in Nevada tossed out a Red Rock lawsuit challenging the constitutionality of the NLRB’s removal protections. That court sits in the Ninth Circuit, and the result is far different from what employers have experienced in the Fifth Circuit.
What Sank Red Rock’s Challenge
Biden-appointed Judge Anne Traum dismissed Red Rock’s suit challenging removal protections of Board members and administrative law judges.
In doing so, Traum relied upon Collins v. Yellen, in which the Supreme Court ruled that the Federal Housing Finance Agency’s removal protections were unconstitutional while remanding on the remedies issue. Under the Ninth Circuit’s reading of Collins, it’s not enough for a challenger to show that removal protections exist and are unconstitutional. The employer must prove real harm, meaning that the removal protections prevented a termination by the president. As Traum pointed out, President Trump was not prevented from firing NLRB member Gwynne Wilcox.
Additionally, Traum cited the Ninth Circuit’s ruling in a different case, NLRB v. North Mountain Foothills Apartments LLC, to dismiss Red Rock’s claim that the NLRB’s authority to exercise executive, judicial, and legislative power violated the separation-of-powers doctrine.
A Look At Where Circuit Courts Stand
The Ninth Circuit has plenty of company–the Second, Third, Sixth, and Tenth Circuits–in its reading of Collins’ causal harm requirement for removal protections. The Fifth Circuit’s outlier perspective landed in a 2025 case that halted NLRB proceedings while employer challenges against the Board’s constitutionality proceeded.
A wrinkle: In some circuits–the Third and Ninth–another hurdle must be overcome by employers before the issue of harm can even be considered. That would be the Norris-LaGuardia Act, which prevents courts from granting injunctions, including orders halting unfair labor practice (ULP) proceedings, when cases grow out of or involve a “labor dispute.”
The Fifth Circuit’s Loner Status
This might sound like an obvious statement, but plaintiffs who don’t bring lawsuits can’t win lawsuits, and Fifth Circuit legal proceedings show why employers continue to bring challenges.
The Fifth Circuit upheld orders that paused ULP proceedings against three employers, including Aunt Bertha and SpaceX, while their constitutional challenges against the NLRB continued. The court found that the Norris-LaGuardia Act doesn’t apply in cases brought against the NLRB. The majority also rebuffed the Board’s reliance on Collins while holding that employers suffer “irreparable harm” simply by being subjected to agency proceedings that are unconstitutional. And since “the harm is immediate,” then the “remedy,” i.e. an injunction, “must be, too.”
The Fifth Circuit’s ruling in this case was not unanimous. In a partial dissent, Judge Jacques Wiener argued that employers who seek remedies should still show causal harm related to Board member removal protections. Wiener walked through the relevant rulings from the Supreme Court and the Second, Sixth, and Tenth Circuits, illustrating the outlier status of the Fifth Circuit’s view. Still, in Texas, Louisiana, and Mississippi, employers receive friendly treatment from courts that halt ULP proceedings as their constitutional challenges make their way through litigation.
Meanwhile, At The Current NLRB
James Macy’s recent confirmation gave the GOP the 3-1 majority necessary to satisfy the Board’s tradition for reversing precedent, and General Counsel Crystal Carey revealed a wish list of decisions that she’d like to see overturned. However, overturning decisions is a slow process, and the Board’s employer-friendly status doesn’t change any ongoing challenges against the agency’s structure.
Red Rock’s September illustrates that the employer-friendly Board can only do so much. This employer’s constitutional challenge against the NLRB failed, and it must still bargain with the Culinary Union while seeking Supreme Court review. As with any other area of law, forum matters. The Fifth Circuit makes clear that there’s still some wiggle room regarding Collins’ reach on causal harm and the Norris-LaGuardia Act.
Where does that leave employers? Those who are watching from anywhere other than the Fifth Circuit shouldn’t rule out their own challenges, but they should consult counsel and remain aware of the hurdles that Red Rock faced this month.
