Employment law pop quiz #17 – NLRB & the constitution

Is the NLRB unconstitutional?

So far, no court has said so. But storm clouds are forming courtesy of Amazon, SpaceX, Starbucks, and Trader Joe’s.

A prime target for the naysayers is the fact that NLRB Members can be removed by the President only "upon notice and hearing, for neglect of duty or malfeasance in office, but for no other cause."

The argument is simple: NLRB Members must serve at the will of the President, period. So the President can remove them for any reason or no reason.

This argument gets some support from the US Supreme Court case of Seila Law v. Consumer Financial Protection Bureau, 591 US 197 (2020) [PDF].

In the Seila case the CFPB was headed up by a single director who wielded a lot of executive powers. He was removable by the President only for “inefficiency, neglect of duty, or malfeasance in office.”

The Court held that violated the constitution's separation of powers.

As a remedy, the Court did not trash the entire agency. It simply severed the director’s removal protection from the other provisions of the statute. It seems that would be the worst case scenario for the NLRB.

Does the NLRB really exercise executive powers? They are what the Court has labelled “quasi-legislative” and “quasi-judicial" functions. Yet they do exercise one important executive power. The General Counsel cannot sue for an injunction in federal district court without the Board’s approval.

The NLRB's General Counsel exercises executive functions, and is removable at the President's will.

Your results may vary. If you have this issue, consult a good employment lawyer.
(Not me, I'm an arbitrator.)

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