WASHINGTON (Legal Newsline) - A federal judge won't dismantle the National Labor Relations Board after being asked to do so by a California man unhappy with how it handled his complaints - and after a colleague refused to allow President Donald Trump to fire one of its members.
D.C. judge Rudolph Contreras last week granted the NLRB's request to dismiss the lawsuit brought by Victor Aliva, who argued the NLRB's structure is unconstitutional because its five members have protections from removal.
NLRB members serve terms of up to five years and can be removed only for neglect of duty or malfeasance. Avila failed to show he was actually harmed by this, Contreras ruled.
"Courts disagree about precisely what showing a party must make to meet the... harm requirement," he wrote. "Yet Avila makes no showing whatsoever.
"He pleads no facts in his complaint showing harm and makes no argument in his briefing that he has met his burden. He does not allege, for instance, that the President has been unlawfully restrained from removing members of the NLRB."
Trump, since taking office in January, has fired NLRB's general counsel and its chairperson. But two Democrats appointed by former President Joe Biden remain, along with Republican Marvin Kaplan, and the NLRB currently has two vacant seats.
Trump tried to fire Democrat Gwynne Wilcox, but a federal court recently found that was illegal. D.C. federal judge Beryl Howell, an Obama-appointee like Contreras, ruled Trump does not have the authority to fire anyone he wants in the executive branch.
"The President's interpretation of the scope of his constitutional power - or, more aptly, his aspiration - is flat wrong," Howell wrote.
"The President does not have the authority to terminate members of the NLRB at will, and his attempt to fire plaintiff from her position on the Board was a blatant violation of the law."
Trump, who successfully ousted the head of the Consumer Financial Protection Bureau without cause in his first term after a court fight, is appealing the case. When it makes its arguments, it won't have the ruling in Avila's case to point to.
Avila filed an unfair labor charge with the NLRB in August 2023 that said a labor organization violated the National Labor Relations Act by threatening those who did not support the union with physical violence.
Avila is an employee of Savage Services Corporation in Wilmington, Calif. His lawsuit, filed by the National Right to Work Legal Defense Foundation, said federal officials who wield substantial executive power must be removable by the President.
An NLRB administrative law judge held a hearing on June 11, 2024, and Avila filed his lawsuit the same day. Ultimately, the ALJ dismissed the complaint in October, finding Avila and a co-worker called union supporters derogatory names.
The ALJ also found "significant differences" in the testimony of Avila and the co-worker, Nelson Medina. The union worker denied ever threatening physical violence.
Contreras ultimately did not rule on whether the NLRB's structure is unconstitutional, because Avila failed to showed he suffered any harm from it. He looked at a 2021 case in which the U.S. Supreme Court struck down the for-cause removal restriction of the director of the Federal Housing Finance Agency but also said the plaintiff must show they were harmed by an unconstitutional provision.
That evidence might include a president's desire to remove the official.
Meanwhile, the NLRB is appealing a December decision in another challenge, brought by Saint Vincent Hospital in Massachusetts. The hospital likewise failed to overhaul the NLRB members' protections but did successfully argue that administrative law judges in the agency are unconstitutionally tenured.
"NLRB ALJs are cloaked in at least two - and arguably three - levels of tenure protection," D.C. federal judge Trevor McFadden found.
"Thus, if the President wanted to remove an ALJ, he would first have to convince the NLRB. Then, the NLRB would need to petition a different agency, the (Merit Systems Protection Board). Next, the MPSB would have to find good cause and so form the NLRB. Finally, the NLRB would have to choose to act on that finding.
"This could result in federal officers pursuing unordained and perhaps unwise paths, with the only fear of reprisal shrouded in a maze of red tape."