crs_reports: R48896

Congressional Research Service reports with summaries, authors, and topic classifications.

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R48896 The National Labor Relations Board: Legal Background and Recent Constitutional Challenges 2026-04-03T04:00:00Z 2026-04-08T15:22:59Z Active Reports Jon O. Shimabukuro, Jimmy Balser Administrative Law, Judicial Branch, Jurisprudence, Labor Relations, National Labor Relations Act (NLRA), National Labor Relations Board (NLRB) The National Labor Relations Act (NLRA or Act), 29 U.S.C. §§ 151–169, regulates labor-management relations between most private-sector employees and employers in the United States. The NLRA created the National Labor Relations Board (NLRB), a federal agency that administers and enforces the Act. The NLRB adjudicates labor representation disputes, complaints of unfair labor practices (ULPs), and contract disputes. The NLRB is led by a five-member board (NLRB Board or Board), whose members are appointed by the President, confirmed by the Senate, and generally serve five-year terms as laid out by the Act. In legal developments this decade, litigants have challenged the constitutionality of the NLRB in federal court on several fronts, including claims that statutory provisions that prohibit presidents from removing Board members and administrative law judges without cause are unconstitutional. The NLRA restricts the President from removing any member of the Board except, “upon notice and hearing, for neglect of duty or malfeasance in office, but for no other cause.” 29 U.S.C. § 153(a). Similar protections exist for the NLRB’s administrative law judges, as laid out in the Administrative Procedure Act. 5 U.S.C. §§ 551–559. Such requirements under law are known as “for cause” removal provisions, in contrast to provisions that allow an employee to be removed “at will.” The government in Trump v. Wilcox, 145 S. Ct. 1415 (2025), has contended that the NLRB’s long-standing removal protections unconstitutionally curtail the President’s Article II authority and violate the separation-of-powers doctrine. Plaintiffs have also argued that the NLRB’s combined investigatory and adjudicatory powers are inconsistent with separation-of-powers principles and violate the Fifth Amendment right to due process. For example, plaintiffs have contended that the NLRB unlawfully exercises the powers of all three branches of government by performing executive functions when it investigates and prosecutes ULPs, exercising judicial functions when it resolves ULP legal disputes and issues binding orders, and acting in a legislative capacity by establishing labor-management standards. See, e.g., NLRB v. North Mountain Foothills Apartments, 157 F.4th 1089, 1095 (9th Cir. 2025). Additionally, some plaintiffs have argued that the NLRB’s adjudication scheme violates the Seventh Amendment by depriving them of their right to a jury trial. The Seventh Amendment provides that “[i]n Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved.” Under the NLRA, unfair labor practice complaints are adjudicated before administrative law judges and the Board, which may order “such affirmative action including reinstatement of employees with or without back pay, as will effectuate the policies of [the Act].” 29 U.S.C. § 160(c). The plaintiffs contend that these cases are suits at common law that should be decided by a jury and not by an agency. This report discusses the various legal challenges to the NLRB’s structure, procedures, and authorities. The report concludes with considerations for Congress, including federal proposals to amend the NLRA, state proposals to exercise jurisdiction alongside or in lieu of federal regulation, and potential constitutional obstacles to reform. https://www.congress.gov/crs_external_products/R/PDF/R48896/R48896.2.pdf https://www.congress.gov/crs_external_products/R/HTML/R48896.html

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