Labor & Employment Law Daily Wrap Up, LABOR NEWS—Unions seek to step in to defend NLRB’s authority before the U.S. Supreme Court, (Nov 6, 2025)

By Brandi O. Brown, J.D.

“This case isn’t only about one workplace or one union—it’s about making sure working people aren’t silenced and that the law still works for all it’s meant to serve.”

This week, the AFL-CIO and the Office and Professional Employees (OPEIU) announced that they filed a motion to intervene with the U.S. Supreme Court seeking review, through a petition for certiorari, of the Fifth Circuit’s decision in Space Exploration Technologies Corporation v. National Labor Relations Board, Case Nos. 24-50627, 24-40533, and 24-10855 (5th Cir. 2025). The motion asks the court to allow OPEIU to defend the National Labor Relations Board’s (NLRB’s) authority, given that the NLRB has decided not to petition for a writ of certiorari, and to protect workers’ ability to seek justice for labor law violations with the agency. OPEIU, as the real party in interest in one of the three consolidated proceedings below, is the right petitioner to bring this case to the Court, they note.

Circuit split. “This case presents the Court with the opportunity to resolve an entrenched circuit split that is wreaking havoc on lawful administrative agency proceedings within the Fifth Circuit’s jurisdiction,” they argue in the motion. “Three Circuits—the Second, Sixth, and Tenth Circuits—have squarely held, and three more—the Third, Fourth, and D.C. Circuits—have strongly implied that, under this Court’s decision in Collins v. Yellen, 594 U.S. 220 (2021), a plaintiff must make a formidable showing of harm in order to enjoin a lawfully-appointed federal officer from exercising their powers on the basis of an allegedly unlawful statutory provision limiting removal.”

Fifth Circuit’s radical course. However, they add, the Fifth Circuit in Space X, in a decision issued by a divided panel, “charted a radically different course.” The court’s decision, they note, allows employers to easily obtain injunctions blocking the NLRB from hearing any case, even when workers are fired or punished for trying to organize a union. Moreover, they explain in the motion that “Because the Fifth Circuit also holds that all (or virtually all) administrative law judges’ (“ALJs’”) tenure protections are unconstitutional, see Jarkesy v. SEC, 34 F.4th 446, 463–65 (5th Cir. 2022), aff’d and remanded on other grounds, 603 U.S. 109 (2024), any regulated party can secure an injunction against any agency proceeding that relies on ALJs.”

“The NLRB is one of workers’ primary pathways for justice when their rights are violated,” said AFL-CIO President Liz Shuler, adding that “This case isn’t only about one workplace or one union—it’s about making sure working people aren’t silenced and that the law still works for all it’s meant to serve.”

“In a time when the rights of working people are being stripped away, this case is crucial to OPEIU’s efforts to defend workers. The Supreme Court must continue to allow workers’ rights to be vindicated by the NLRB,” said OPEIU President Tyler Turner.

The docket is No. 25M35.

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