For workers and union activists, the news these days can’t get any worse, right? Wrong! Now the National Labor Relations Board itself is under an existential threat. We must work together with legislators to save labor rights.

As many of us know, the National Labor Relations Board is the administrative agency that enforces the nation’s labor laws, codified under the National Labor Relations Act. The NLRB has a national office and many regional offices. Local 802 has interacted with our regional office many times in our history whenever we file for union certification elections or file unfair labor practice charges against employers.

At the national level, the NLRB is run by five members, all appointed by the president, but who enjoy certain job protections. Presently there are only two active board members, leaving it without a majority. At the regional level, administrative law judges certify union election election results and render decisions on unfair labor practice charges. These administrative law judges are the ones who receive petitions and other casework filed by Local 802 and other unions and employers. These judges also enjoy certain job protections.

Specifically, board members and regional administrative law judges have been historically shielded from being fired arbitrarily with a job protection called “two-layered for-cause protection.” (More on that below.)

For over 90 years, the NLRB has operated in this fashion without question or challenge. That is, until now.

In 2024, four separate employers — including Elon Musk’s SpaceX — sought temporary injunctions against the NLRB in federal court seeking to prevent it from issuing unfair labor practice rulings. These demands were based upon the alleged “unconstitutionality” of the NLRB’s structure — specifically, the way the administrative law judges and NLRB board members have historically been protected against dismissal. For this reason, the employers claim that the entire NLRB adjudication process is unconstitutional.

In other words, the structure of the NLRB is allegedly “unconstitutional” because the president has not been allowed to remove board members or administrative law judges at will. This has supposedly given the NLRB (according to the plaintiffs) the right to incorrectly wield executive power under Article II of the Constitution.

As absurd as this may sound, each court so far has agreed that the Board’s structure is unconstitutional and has issued injunctions. As a result, NLRB unfair labor practice proceedings have screeched to a halt.

On Aug. 19, 2025, in the first appellate ruling to be handed down, the U.S. Court of Appeals for the Fifth Circuit affirmed a district court’s preliminary injunctions that halted several ongoing unfair labor practice cases pending before the NLRB. The decision can be found here. The case was Space Exploration Technology Corp (SpaceX). v. NLRB, No. 24-50627 (5th Cir. 2025).

In the SpaceX decision, here’s why the Fifth Circuit ruled that the grounds for injunctive relief were satisfied. First it held that there was a high probability of success on the merits of the case because precedential decisions regarding other related administrative agencies with “two-layered for-cause protection” were held to be unconstitutional. The Fifth Circuit claims that it is highly probable that the NLRB’s system will be found to be unconstitutional too.

Secondly, the Fifth Circuit found that there was irreparable harm caused by the NLRB’s defective structure. The Court pulled no punches and wrote that “the harm is not downstream from the process: it is the process.”

Nonetheless, there was a dissent in this opinion that I believe successfully argued that there is no actual irreparable harm caused by the structure of the NLRB.

The dissenting judge, Justice Jacques L. Wiener, Jr., stated that as long as the administrative law judges and board members have been properly appointed, their decisions must be deemed legitimate. The judge wrote that it cannot be proven that an injury was sustained to any litigants by properly appointed officials carrying out their official duty.

To that end, the dissent stated that “A duly appointed officer is not ‘illegitimate’ and ‘the mere existence of an unconstitutional removal provision… generally does not automatically taint government action by an official unlawfully insulated.” Unfortunately, this argument was rejected by the majority of the court.

As shocking and as devastating as it seems, it’s possible that the NLRB’s administrative process — its very structure — will be deemed unconstitutional by the Supreme Court.

If so, it may likely mean that the NLRB itself may cease to exist.

We must hope for the best and prepare for the worst. Legislators must immediately start crafting reparative legislation so the NLRB and the NLRA are not left in ruins. Workers and labor activists must not be blindsided. Let’s get to it!

Harvey S. Mars, Esq. is the in-house counsel for Local 802. Contact him at hmars@local802afm.org.