Trump judge gives the right a big win on labor law, undercutting NLRB

A federal judge in Texas gave a major win to corporate employers seeking to disable or destroy the National Labor Relations Board Tuesday. This ruling came in a case brought by the tech company Findhelp, which mirrors other cases brought by companies like SpaceX and Trader Joe’s that are currently moving through the courts.

Judge Mark Pittman, who was appointed to the federal bench for Northern District of Texas by Donald Trump, is overseeing a case brought by Findhelp in which the company effectively argues that the NLRB is unconstitutional.

In this case, and others like it, employers are claiming that the employment protections afforded to NLRB judges are unconstitutional because such judges cannot be removed at will either by the agency head or the president. Instead, the NLRB head or the president must establish a proper cause for removal.

In the Findhelp suit, the company filed for a preliminary injunction in hopes of stopping ongoing proceedings at the NLRB, the federal agency that adjudicates unfair labor practices. Findhelp claimed that if the unfair labor practices case against it were to proceed, the company would suffer irreparable harm. The injunction was filed in an effort to head off an NLRB hearing set for Sept. 23.

In his ruling, Pittman cited a decision by the conservative-leaning Fifth Circuit Court of Appeals ruling in Jarkesy v. SEC, a case that later made its way to the Supreme Court. In a parallel case related to the Securities and Exchange Commission, a different federal regulatory agency, the court ruled that SEC administrative judges had been unconstitutionally protected from removal.

Pittman wrote that in the current case, NLRB administrative judges "are afforded the same two layers of forcause removal protections that the Fifth Circuit found to be unconstitutional" with regard to the SEC judges.

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This ruling on the injunction represents a major victory for Findhelp and signals that the court may be poised to rule in the company's favor in the near future. The case is one of many brought by corporate entities that hop to render the NLRB effectively useless by disempowering its administrative judges.

Similar cases have been brought by Starbucks, Trader Joe’s and SpaceX, among other companies. One of these cases is likely to reach the highly employer-friendly Fifth Circuit on appeal in the years ahead, and could easily wind up before the Supreme Court.

This ruling also represents a striking victory for the conservative legal movement, which has pushed to have these kinds of administrative-law cases tried in regular civil or criminal courts, rather than agency-specific administrative courts where experts in the subject matter typically oversee the proceedings.