Glenn Spencer Glenn Spencer
Senior Vice President, Employment Policy Division, U.S. Chamber of Commerce


April 09, 2024


On April 1, the National Labor Relations Board (NLRB) received a rather unusual judicial order. It seems the agency may have engaged in several improper calls and meetings involving the Space X case in an attempt to undercut the Fifth Circuit Court of Appeals. 

By way of background, the NLRB filed a complaint against Space X in early January, alleging that the company illegally fired several employees who, in 2022, had published an open letter raising concerns about the workplace. In conjunction with the complaint, the NLRB also scheduled an administrative hearing.

Space X then filed a lawsuit in the Fifth Circuit Court of Appeals, arguing that the NLRB’s system of administrative law judges (ALJs) is unconstitutional.  Initially, a Texas judge tried to bump jurisdiction in the litigation to California, where Space X is headquartered (note that Space X has a significant launch facility in Texas). That move was halted, though, by a 2-1 panel of the Fifth Circuit, which agreed that the jurisdictional issue should be decided en banc. It’s here where the story gets interesting. 

It seems that shortly after the Fifth Circuit decided to stay the transfer of jurisdiction, NLRB officials called and met with the clerk of the Central District of California. This prompted a stern order from the Fifth Circuit asking the NLRB to provide answers to a number of questions, including:

  • Why an NLRB attorney had called the clerk after the transfer had been stayed;
  • What information the NLRB received;
  • When the NLRB became aware that it had made improper representations to the Fifth Circuit regarding the transfer;
  • Why the agency did not immediately inform the Fifth Circuit of such misrepresentations,
  • and why the NLRB tried to convince the California Central District Court to ignore the Fifth Circuit’s decision to stay the transfer of jurisdiction pending the en banc hearing.

One doesn’t need to be a legal expert to surmise that the NLRB thought it would get a more favorable hearing in California. And what it was most likely doing was attempting to have California assert jurisdiction before the Fifth Circuit could conclude its en banc hearing. However, the judges in the Fifth Circuit were obviously not impressed by the NLRB’s attempt at an end run. 

Surreptitiously trying to stack the deck for unions is, unfortunately, not new ground for the current NLRB. Back in 2022, in NLRB Regions 14 and 19, officials attempted to tilt elections in favor of unions in a way that the agency’s Inspector General said “could have a significant adverse impact on the NLRB in performing its statutory mission.” The IG went on to say that this conduct constituted “gross mismanagement.” And just recently, the DC Circuit slammed the NLRB for issuing an erroneous decision the court called “nonsense” that “strayed from [the NLRB’s] statutory mandate.”

Whether the current imbroglio puts the NLRB on the straight and narrow remains to be seen, as does the ultimate fate of the challenge to the agency’s system of ALJs. Either way, the current level of favoritism towards unions is unprecedented.

About the authors

Glenn Spencer

Glenn Spencer

Spencer oversees the Chamber’s work on immigration, retirement security, traditional labor relations, human trafficking, wage hour and worker safety issues, EEOC matters, and state labor and employment law.

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