Injunction Denials Deepen Fight Over NLRB’s Constitutionality

The battle over the constitutionality of the National Labor Relations Board continues after two federal courts denied employers’ injunctions challenging the board. Hugh Murray, Chair of McCarter’s Labor & Employment Practice Group, tells Law360 that the courts are unlikely to either disavow longstanding US Supreme Court precedent holding that the NLRB is constitutional or adopt theories that the NLRB’s judges possess unconstitutional job protection and that board’s power and structure infringe litigants due process rights and rights to a jury trial. “From a practitioner’s standpoint, I don’t know that it makes sense for everybody to bring a claim in court… but popping in affirmative defenses in each one of your unfair labor practice charges” offers a possible escape from NLRB scrutiny should the Supreme Court later endorse any of these theories, Hugh says.