Federal Judge Mark Pittman, who was appointed to the federal bench for the Northern District of Texas by former president Donald Trump has granted an injunction in favor of an Austin-headquartered tech company that argued that the National Labor Relations Board (NLRB) is unconstitutional.
While similar cases have been filed by other major companies like Amazon, Starbucks, and Elon Musk’s SpaceX, Pittman’s order is bound to open a can of worms especially ahead of the upcoming US elections.
For context, the NLRB is an independent agency that was formed in 1935 and is tasked with enforcing the National Labor Relations Act (NLRA). The NLRB oversees almost all the union elections at private companies and has powers to issue regulations and adjudicate cases involving violation of labor laws. It has both a prosecution and administrative law judge (ALJ) arms.
It is therefore unsurprising that the NLRB has been in the crosshairs of corporations – big and small. Two arguments are made against the NLRB, firstly it has both prosecution and ALJ arms that go against the principle of “separation of power.”
Secondly, NLRJ judges cannot be removed by either the agency or the president at their will and there has to be a proper reason behind their removal. The rule many believe runs contrary to the President’s executive powers.
Trump Judge Strikes Blow Against NLRB in Troubling Sign of What's Next – The New Republic https://t.co/kIPOMqPPi0
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Trump-Appointed Judge Provided Injunction Against NLRB
Meanwhile, Judge Pittman has provided a preliminary injunction in favor of Findhelp. The order states, “In this case, the NLRB ALJs are afforded the same two layers of for-cause removal protections that the Fifth Circuit found to be unconstitutional with regard to the SEC ALJs.”
It is a reference to the ruling in Jarkesy vs. SEC (Securities and Exchange Commission) where the US Courts of Appeals for the Fifth Circuit ruled that SEC ALJ proceedings are unconstitutional, arguing that they deny the defendants the right to a jury trial provided by the Seventh Amendment. By providing a preliminary injunction to Findhelp, Pittman has raised hopes of a favorable judgment in its favor.
Notably, the preliminary injunction against the NLRB has come a couple of days after US District Judge Jeffrey disagreed with similar allegations made by Alivio Medical Center against the constitutionality of the agency.
US District Judge Jeffrey Cummings ruled that Alivio Medical Center is unlikely to prevail in its challenge to the structure of the NLRB and declined to block the agency's case against the center from moving forward.
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Obama-Appointed Judge Had Ruled in NLRB’s Favor Last Week
“Alivio’s position – if accepted – would neuter the National Labor Relations Act by blocking all proceedings before the National Labor Relations Board, the independent agency that has steadfastly and exclusively enforced the statute for the past eighty-nine years against entities accused of unfair labor practices,” said the Barack Obama appointed judge in his written order.
The judge noted, “both the Tenth Circuit and the Fifth Circuit have held that the removal protections for officers serving on the multimember Consumer Product Safety Commission (“CPSC”) are constitutional under the Humphrey’s Executor removal exception.”
While both judges have talked about Fifth Circuit rulings, they may have cherry-picked them to substantiate their point. Meanwhile, the order against NLRB could land in the US Supreme Court – just as in the Jarkesy vs. SEC case that Judge Pittman referred to where the SCOTUS affirmed that defendants have a constitutional right to a jury trial for defendants in SEC enforcement proceedings seeking civil penalties.
Trump Appointed Judges Have Given Some Crazy Rulings in the Past
In the past also, some Trump-appointed judges have given orders that the legal fraternity found as “crazy.” For instance, in March this year, the jury instructions proposed by US District Judge Aileen Cannon instructed that a president has sole authority to declare records as personal or presidential. Legal experts said that Cannon’s instructions amounted to dismissing the classified documents case against Trump (and that her ruling had little if any legal grounding whatsoever).
“It turns out it’s two pages of crazy stemming from the Judge’s apparent inability to tell Trump no when it comes to his argument that he turned the nation’s secrets into his personal records by designating them as such under the Presidential Records Act,” Joyce White Vance, a former US attorney had said of the ruling.
Former Donald Trump attorney Timothy Parlatore who quit the former President’s legal team last year aptly pointed out that while the judges appointed by Democrats are ruling against Trump, those appointed by Trump have been ruling in his favor. “It does correctly undermine the public’s trust in the system because sometimes judges do things that are political,” summed up Parlatore.
Critics of Aileen Cannon and many 5th circuit judges argue that they make these crazy rulings with little if any legal grounds in an attempt to stand out and potentially nab a seat on the Supreme Court if Donald Trump is elected president in November. In the 5th circuit’s last term, 8 of its 11 rulings were later overturned. Trump is famous for entirely changing the nature of the court into one that often rules along party lines, overturning Roe vs Wade, ruling that the president is mostly unaccountable to criminal prosecution for crimes committed during his or her tenure, and much more.
Expect Political Slugfest on the NLRB Issue Ahead of Elections
Meanwhile, it would be fair to expect a bit of a slugfest on the NLRB issue as Trump and Kamala Harris face off in the upcoming presidential elections. While Trump has dissociated himself from “Project 2025” – a policy blueprint for the second Trump presidency – progressive groups argue that NLRB’s powers might be greatly curbed under that plan.
“Project 2025 recommends firing the general counsel “on Day One” as part of its plans to upend much of the civil service, which would threaten the NLRB’s ability to protect workers trying to organize for good, middle-class jobs,” says The Center for American Progress, a liberal-leaning thinktank.
It was all praise for the actions NLRB has been taking to protect the rights of workers under the stewardship of General Counsel Jennifer Abruzzo.
As President, Joe Biden demonstrated his solidarity with United Auto Workers (UAW) members. President Biden joined UAW members in Michigan on the picket line, marking a historic moment for a modern president. pic.twitter.com/eEvDzkN0pm
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Also, the ruling comes at a time when Boeing workers rejected the preliminary labor contract which among others promised a 25% wage hike over four years, and instead voted to strike for the first time in 16 years.
Incidentally, last year, Joe Biden became the first ever sitting president to stand on a picket line and speak in support of the United Auto Workers (UAW) strike against the Detroit Big 3. The Biden administration has also been following the Boeing labor negotiations and called for a fair agreement.
Judge Pittman’s invoking of the Fifth Circuit’s ruling in the SEC case to grant a preliminary injunction to Findhelp is bound to reignite the debate over the constitutionality of the institution with the charged-up political climate making the atmosphere even more partisan.