Dallas Employment Lawyer Blog
Dallas Employment Trial Lawyer Austin Campbell
On August 19, 2025, the Fifth Circuit Court of Appeals, which is the federal appellate court over Texas, ruled that the National Labor Relations Board—the independent federal agency that oversees union elections and protects the rights of workers to organize and discuss the terms and conditions of their employment—was structured in an unconstitutional way. The decision is SpaceX et al. v. National Labor Relations Board, No. 24-50627. This decision is all but guaranteed to lead to a showdown at the U.S. Supreme Court, where it could potentially upend massive amounts of rulings both by courts and the NLRB itself, as that agency has been around for nearly 100 years.
The NLRB employs a number of Administrative Law Judges to decide “unfair labor practice” cases before the Board. These are not “Article III” federal judges like the ones who decided this case, but employees of the Board who decide disputes that are filed with the Board. This is not an uncommon structure in how federal agencies work. For instance, all of the immigration judges who have been in the news lately deciding whether to deport asylum seekers are so-called “Administrative Judges,” a slightly different category.
The NLRB’s ALJs have some protections against removal from office, which helps ensure they have the ability to act independently in making decisions, rather than just being at the beck and call of whoever happens to be in charge of the Board of the NLRB at a given moment. However, the Fifth Circuit held that the NLRB’s ALJs essentially have too much protection from removal, which it concluded interfered in the right of the President to exercise control over the agency.
The Fifth Circuit also held that NLRB Board members themselves have too much protection from removal. Notably, there are many other federal agencies composed of independent boards that have protection from Presidential meddling in the form of firing and replacing their members. However, the Fifth Circuit here ruled that the NLRB in itself had too much power and was too “politically charged” to merit those same kinds of protections, which are meant to ensure agency independence.
Based on this reasoning, the Fifth Circuit affirmed a lower court injunction, which essentially stops the NLRB from prosecuting SpaceX and the other appellees for unfair (illegal) labor practices. As even the concurring (in part) opinion of Judge Wiener notes, this Fifth Circuit decision is at odds with the law as interpreted in the Sixth, Second, and Tenth Circuit, which all refused to issue injunctions against the NLRB based on similar arguments about NLRB officials’ removability.
So what does this all mean? First, the ability of the NLRB to do much of anything to enforce workers’ rights in the Fifth Circuit is now called into question for the time being. If SpaceX can get this injunction stopping the NLRB, potentially so could many other employers. Next, it is highly likely that the U.S. Supreme Court is going to have to decide on this “circuit split” in the near future. Given the conservative makeup of the current Supreme Court, it is not all that unlikely that the Court could side with the Fifth Circuit over the Sixth, Second, and Tenth.
And what would that mean? That is harder to say. Theoretically, the U.S. Supreme Court could all but force Congress to change how it structured the NLRB. A new NLRB with removal protections for ALJs and Board members stripped away is likely to be more “responsive” to the demands and policy goals of whoever sits in the Oval Office going forward—because those who oppose that agenda could be just removed from office. If the NLRB is too “politically charged” now, that will only make it more so. NLRB decisions are already far more fluid than court decisions, and this might only bring more chaos. Given the current presidential administration, this seems like a bad omen for workers’ rights. Of course, the shoe could be on the other foot if more worker-friendly administrations succeed the current one.
Another possible scenario concerns what to do with past decisions about the NLRB’s authority. If the NLRB’s structure since 1935 has been unconstitutional, what does that mean about past court decisions about the agency, or past ALJs’ decisions? Ideally, they are left undisturbed. But an especially bad Supreme Court opinion could open the door to retroactively challenging the NLRB’s past decisions and actions. Hopefully this is not a scenario where 90 years of precedent are just thrown out the window, but something like that could be within the U.S. Supreme Court’s power to do. And unfortunately, with its decisions overturning Roe v. Wade and eliminating Chevron deference already in the rearview, this Supreme Court might be fine with that outcome.
Of course, one last thing to note is that what the Fifth Circuit affirmed here was a “preliminary” injunction that would just apply for the duration of the SpaceX case. By contrast a “permanent” injunction, which comes at the end of a case, would permanently impact the NLRB. Because of the procedural step this case is at, it is entirely possible the Supreme Court could punt on the matter and not rule on the core of the Fifth Circuit’s decision, since it was merely a preliminary injunction. Either way, the NLRB’s fate currently hangs in the balance.
Even with all this uncertainty, it is still possible to take actions to protect your rights. If you believe your employer has violated your right to engage in concerted protected activity about the terms and conditions of your employment, you should contact an employment attorney like those at Rob Wiley, P.C.