The National Labor Relations Board (NLRB), the only federal agency charged with enforcing private-sector workers’ rights to organize and bargain collectively, is facing a constitutional crisis. On August 19, the Fifth Circuit Court of Appeals ruled that the structure protecting NLRB administrative law judges (ALJs) and Board members from presidential removal violates the Constitution’s separation of powers.
Workers’ greatest power has always been in direct action against employers. Legal remedies are just one tool in the broader struggle. Today, with the Board’s enforcement capacity under threat, the importance of shop-floor power is clearer than ever.
Under the National Labor Relations Act (NLRA), if workers believe their boss has broken the law, they can file an unfair labor practice charge with the NLRB. The local office investigates, and if it finds the case has merit, it takes the employer to trial before an administrative law judge, who then decides the outcome.
The immediate consequence of the Fifth Circuit ruling is stark: workers in Texas, Louisiana, and Mississippi can still file charges with the NLRB’s regional offices, but those cases cannot proceed to a hearing before an ALJ.
Investigations may be conducted, and complaints may even be issued, because these are functions performed by the NLRB region. But once a matter requires adjudication, employers in the Fifth Circuit will be able to obtain injunctions from district courts halting the process. For workers in these three states, meaningful recourse for unfair labor practices has…
Auteur: Benjamin Dictor
