White Paper: An “Independent” Agency Faces its Limits

The National Labor Relations Board (NLRB) was established to administer federal labor law and help promote stable labor relations. But decades of shifting doctrine and an expanding view of the Board’s authority have created growing uncertainty for employers, employees, and unions.

A new U.S. Chamber of Commerce white paper examines that history and the constitutional challenges that could significantly alter the NLRB’s structure.

“An ‘Independent’ Agency Faces its Limits: The Constitutional Challenges to the NLRB” traces how the Board has extended federal labor-law scrutiny into areas ranging from employee handbooks and workplace conduct rules to severance agreements and disciplinary decisions.

These developments have been accompanied by repeated changes in precedent. Rules governing workplace policies, dues checkoff, and other fundamental labor questions have shifted as the Board’s political composition has changed. In some instances, policies written to comply with one NLRB standard have later been judged under a different one.

The result is a labor-law system that can make long-term compliance difficult and create tension with employers’ responsibilities under other workplace laws, including requirements to prevent harassment and maintain safe, professional workplaces.

Against that backdrop, recent litigation has raised a separate but related question: Is the NLRB sufficiently accountable to the president under Article II of the Constitution?

Cases involving SpaceX, Energy Transfer, and Findhelp challenge statutory removal protections afforded to NLRB officials. Courts considering those challenges have been asked to determine whether officials exercising substantial federal authority can constitutionally remain protected from presidential removal.

The implications extend well beyond the individual cases.

The paper explores why an agency with significant authority over the American workplace must not only enforce the law consistently, but also operate within constitutional limits.

Employees should remain free to organize, bargain collectively, and act together over wages and working conditions. Employers, meanwhile, should be able to rely on stable rules and predictable enforcement.

Download the white paper to learn more.

About the author

Glenn Spencer

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

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