Federal Courts Continue to Scrutinize NLRB Enforcement Authority and Procedures

Federal courts continue to shape the National Labor Relations Board’s (“NLRB” or the “Board”) authority to pursue enforcement actions, including when the Board can obtain emergency court orders and how its administrative proceedings may be challenged.  Following the United States Supreme Court’s decision in Starbucks Corp. v. McKinney, courts have taken a closer look at the standard for granting injunctions under Section 10(j) of the National Labor Relations Act (“NLRA”), rejecting the idea that harm should automatically be presumed when the Board seeks temporary relief.  At the same time, employers continue to challenge the constitutionality of the Board’s structure and authority, culminating in a recent Texas federal court decision permanently blocking an NLRB administrative proceeding based on constitutional concerns.  Although these decisions arise in different contexts, together they reflect continued judicial scrutiny of the Board’s authority and enforcement practices.

Court Raises Standard for NLRB Emergency Injunctions

The NLRB has the ability to ask federal courts for emergency relief under Section 10(j) of the National Labor Relations Act (“NLRA”) while an unfair labor practice case is still pending before the agency.  These requests are often used in organizing campaigns or discharge cases where the NLRB argues immediate court action is necessary before the administrative case is completed.

Historically, courts in some jurisdictions applied a more deferential standard to Section 10(j) requests, often giving the NLRB substantial leeway when seeking temporary relief.  The legal landscape shifted in 2024, when the United States Supreme Court held in McKinney that courts must apply the traditional standard used for preliminary injunctions.  The Court made clear that the NLRB must satisfy the same preliminary injunction standard applied in other federal litigation, rather than rely on a more Board-friendly approach.

Applying McKinney, the Sixth Circuit recently vacated a district court’s Section 10(j) injunction in Elizabeth Kerwin v. Trinity Health Grand Haven Hospital, and emphasized that the NLRB cannot rely on a presumption of irreparable harm when seeking Section 10(j) relief.  Instead, the court explained that the NLRB must present evidence of concrete and immediate harm, not simply allegations of interference with organizing activity or employee rights, if it wants a court to intervene before the administrative process is completed.  In doing so, the court rejected the notion that harm to organizing efforts alone automatically justifies emergency relief.  For employers, particularly those in Michigan, Ohio, Kentucky, and Tennessee, the decision may signal closer judicial scrutiny of NLRB requests for emergency relief in labor disputes.  Employers facing organizing activity, termination disputes, or other unfair labor practice allegations may see courts more closely evaluate whether the circumstances truly warrant immediate court intervention before the Board’s administrative process runs its course.

Constitutional Challenges to NLRB Proceedings Continue

At the same time, employers are continuing to challenge the NLRB itself, not just how the agency seeks emergency relief, but whether parts of its structure and authority are constitutional.  In a recent Texas case, Aunt Bertha d/b/a Findhelp v. NLRB, a federal court permanently enjoined the NLRB from continuing an unfair labor practice proceeding against an employer after finding constitutional problems with the agency’s structure and the remedies it sought.  The decision followed an earlier injunction that had already paused the case.

First, the court found problems with the protections that limit when NLRB administrative law judges (“ALJs”) and Board members can be removed from their positions.  According to the court, those protections place too many limits on presidential oversight of executive branch officials and may violate the Constitution’s separation of powers requirements.  The court also rejected the NLRB’s argument that these issues could be fixed while allowing the case to continue.

Second, the court held that the NLRB’s request for compensatory and consequential damages raised jury trial concerns.  Relying on the United States Supreme Court’s decision in SEC v. Jarkesy, the court concluded that when an agency seeks money damages similar to those traditionally decided by courts, certain claims for monetary relief may need to be decided in court before a jury rather than exclusively through an agency proceeding.

The decision currently applies only to the employer involved in that case and likely will be appealed.  Still, it marks another example of courts closely examining the NLRB’s authority and may prompt additional employers to raise similar constitutional arguments in pending unfair labor practice charges.

What Employers Should Know

Together, these decisions suggest courts may be less willing to defer to the NLRB’s asserted authority, both when the agency seeks immediate court intervention and when employers challenge the structure of Board proceedings themselves.  On the other hand, employers continue to test the limits of the Board’s authority through constitutional challenges to its structure and remedies.

Although the NLRB remains active in pursuing enforcement actions, employers should continue monitoring these developments as courts further define the Board’s authority and available remedies in unfair labor practice cases. For assistance, please contact one of Honigman’s Employment and Labor Attorneys here.