A new Ninth Circuit Court of Appeal decision, NLRB v. North Mountain Foothills Apartments, LLC (Oct. 28, 2025), highlights the deepening split between federal appellate courts over the National Labor Relation Board’s (NLRB) constitutional structure – and what that means for employers facing unfair labor practice (ULP) charges.
The Case: North Mountain Foothills
In North Mountain Foothills, the Ninth Circuit enforced an NLRB order finding that the employer unlawfully interrogated, threatened, and discharged an employee who discussed pay and working conditions with coworkers. Beyond the labor-law merits, the employer raised constitutional challenges to the NLRB’s structure – arguing, in part, that the Board’s administrative law judges (ALJs) and members enjoy removal protections that violate Constitutionally protected separation-of-powers principles.
The Ninth Circuit rejected that challenge, holding that so long as an agency officer was validly appointed, retrospective relief based on an unconstitutional provision is only available where the provision inflicts compensable harm. The Court reasoned that, assuming the NLRB’s for-cause protections were invalid, the employer failed to show harm. To do this, the Court noted that a “party must demonstrate that the challenged action or decision was taken by an officer the President sought to but could not remove, or that the removal provision otherwise affected or influenced the challenged action or decision.”
The Contrast: Fifth...
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