On October 28, 2025, the Ninth Circuit, in a unanimous, published decision, rejected three key constitutional attacks on the National Labor Relations Board (“NLRB” or “Board”), some of which have gained favor in other circuit courts, making it harder—for now—for employers to challenge Board proceedings in that jurisdiction. This decision creates a circuit split that could foretell a U.S. Supreme Court resolution.
Below is a factual background of the case, legal analysis of the constitutional implications, and practical takeaways from the Ninth Circuit’s decision in Nat’l Lab. Rels. Bd. v. N. Mountain Foothills Apartments.
Background
In the underlying unfair labor practice case, the Ninth Circuit upheld the Board’s finding that the employer violated Section 8(a)(1) of the National Labor Relations Act (“NLRA” or the “Act”) by illegally interrogating and disciplining an employee who discussed wages, other benefits, and workplace conditions with coworkers.
After a closed-door meeting between a supervisor and the employee—who secretly recorded the meeting—the supervisor berated the employee for his workplace discussions and fired him after his fourth day on the job for alleged failure to complete his work.
A Board administrative law judge (“ALJ”) held that the employer violated the Act by (i) interrogating the employee for his workplace discussions, (ii) issuing an overly broad and discriminatory oral rule barring the employee from discussing workplace issues with coworkers,...
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