NLRB Attempts To Sever Constitutionally Challenged Member Protections

The National Labor Relations Board ("NLRB") recently asked the United States District Court for the Southern District of Texas to issue a declaratory judgment severing the statutory removal protections for NLRB board members and Administrative Law Judges ("ALJs") from the rest of the National Labor Relations Act ("NLRA"). In making this request, the NLRA effectively conceded that the double layer protection currently given to its board members is unconstitutional. The NLRB made this concession in the hopes that it will avoid an injunction preventing the NLRB from prosecuting the underlying unfair labor practices case in its entirety.

In Energy Transfer LP v. National Labor Relations Board ("Energy Transfer LP"), Plaintiff Energy Transfer claims the NLRA provisions that shield NLRB members and ALJs from removal by the President are unconstitutional. Accordingly, Energy Transfer asked the Court to enjoin the NLRB from prosecuting claims of unfair labor practices against Energy