Ninth Circuit Decision Narrows Constitutional Attacks on NLRB Authority

The Ninth Circuit issued a published decision rejecting three constitutional challenges to the National Labor Relations Board (NLRB), creating a split with other circuits and positioning the issue for possible Supreme Court review.

Proskauer writes that the court’s ruling in Nat’l Lab. Rels. Bd. v. N. Mountain Foothills Apartments limits employers’ ability, at least within the Ninth Circuit, to rely on recent constitutional theories gaining traction elsewhere. The opinion arose from a dispute over whether the NLRB could enforce remedies after finding that an employer unlawfully retaliated against an employee who discussed workplace conditions.

The case involved an unfair labor practice proceeding in which the Board found violations of Section 8(a)(1) of the National Labor Relations Act (NLRA). A supervisor interrogated and later terminated an employee shortly after he spoke with coworkers about wages and workplace issues. The employee secretly recorded their meeting.

An administrative law judge (ALJ) concluded that the employer’s conduct violated the NLRA and ordered reinstatement, backpay, and related remedies. The NLRB adopted that decision.

The employer appealed, asserting for the first time that the NLRB’s structure and remedial authority were unconstitutional. The Ninth Circuit examined each assertion.

It concluded that the employer had not shown that removal protections for Board members and ALJs conflicted with Article II; that the Board’s expanded make-whole remedies implicated the Seventh Amendment; or that the Board’s structure violated the Due Process Clause.

The court also found substantial evidence supporting the determination that the employee’s discharge was unlawful, noting that the asserted performance rationale was not raised during the termination meeting.

The decision signals a narrower path for constitutional challenges in the Ninth Circuit, and reinforces the importance of preserving such arguments early. It reflects the court’s continued acceptance of expansive make-whole remedies and confirms that employee discussions about compensation remain protected under the NLRA.