Trump Judge Sides With Employer Arguing NLRB Is Unconstitutional

A federal judge in Texas just handed a court victory to an employer who’s arguing that a key labor rights agency is unconstitutional.

U.S. District Judge Mark Pittman of the Northern District of Texas granted a temporary injunction Monday preventing the agency, the National Labor Relations Board, from moving forward with union-busting charges against the employer, Texas-based Findhelp.

Pittman, who was appointed to the bench by former President Donald Trump, wrote in his order that Findhelp is likely to prevail in its argument that the NLRB’s structure violates the constitution.

“The Court [is] unpersuaded by the NLRB’s arguments,” Pittman wrote.

The NLRB was established as part of the New Deal and enforces collective-bargaining rights in the private sector. Findhelp, a tech startup that says it aims to “modernize” America’s social safety net, is one of several employers that has claimed the NLRB is unconstitutional after the agency brought cases against them.

Unions and labor rights advocates have described such arguments as extreme and dangerous, saying they threaten the labor board’s mission of protecting workers who try to organize. But Pittman’s order granting Findhelp’s request for an injunction shows again that the idea has currency among conservative judges. (The right-wing Federalist Society lists Pittman as a founding member of its Fort Worth chapter.)

Elon Musk’s aerospace company, SpaceX, is pursuing its own lawsuit arguing the NLRB’s structure is unconstitutional. SpaceX won a temporary injunction in that case from a different Texas judge who was appointed by Trump.

The injunctions stop the NLRB cases against SpaceX and Findhelp until the cases revolving around questions of constitutionality are litigated, potentially all the way up to the Supreme Court. The NLRB has argued that issuing these injunctions would prevent it from carrying out its duties.

“Granting an injunction would encourage any employer or labor union unhappy with scrutiny of their labor practices to seek preliminary injunctions against NLRB proceedings,” the NLRB argued in the SpaceX case.

The NLRB has administrative law judges who hear cases and rule on whether employers or unions violated the law. Those rulings can then be appealed to a five-member board in Washington.

As part of its argument, Findhelp claims that the board’s administrative law judge system violates the president’s “removal powers” under Article II of the Constitution. Pittman granted the injunction on that argument alone, and didn’t address Findhelp’s claim that the labor board’s structure is also at odds with the Constitution’s separation of powers doctrine.

Last year, tech workers at Findhelp voted 95-52 in favor of joining the Office and Professional Employees International Union. The union has accused the company of illegally firing and coercing workers in an effort to undermine the organizing campaign, prompting the NLRB to pursue its case.