Labor & Employment Law Daily Wrap Up, LABOR—UNFAIR LABOR PRACTICES—5th Cir.: En banc rehearing denied in unsuccessful challenge to NLRB’s authority to reopen case, (Dec 18, 2025)

By Ronald Miller, J.D.

Judge Ho pointed out that the issue before the appeals court was “not how the three-judge panel should’ve decided this case, but whether all seventeen of us should now rehear it.”

The Fifth Circuit denied rehearing en banc in a dispute over the NLRB’s authority to reopen a prior decision involving ExxonMobil after a change in Board membership. In the underlying decision, the Board vacated a 2020 decision due to the participation of a Board member who had a conflict because he was invested in Exxon. The prior Fifth Circuit panel ruled that the vacatur did not constitute an abuse of authority. Accordingly, the panel decision allowing the Board’s reopening stands, leaving unresolved questions about agency independence and rule-of-law principles. The petition for rehearing en banc was denied (ExxonMobil Research & Engineering Co. nka ExxonMobil Technology and Engineering Co. v. NLRB, No. 23-60495 (5th Cir. Dec. 17, 2025)).

Conflict of interest. In the underlying decision, a union filed unfair labor practice charges against Exxon regarding the employer’s conduct during negotiations for the 2018 collective bargaining agreement. After holding an evidentiary hearing, an ALJ issued a recommended decision finding that Exxon had violated the NLRA by (1) refusing to bargain in good faith on the supervisor PTO review, among other issues. On September 28, 2020, the Board issued a decision (the 2020 Decision) that reversed the ALJ’s findings and dismissed the NLRB's Complaint. 370 N.L.R.B. No. 23 (2020).

Several months after the 2020 Decision, Member Emanuel submitted a financial disclosure report that generated concerns related to potential conflicts of interest. On August 21, 2021, the Inspector General issued a report concluding that Member Emanuel had improperly participated in multiple NLRB proceedings, including the one involving Exxon. On August 19, 2022, an NLRB panel vacated the 2020 Decision and referred the case for adjudication by a new Board panel. 371 N.L.R.B. No. 128 (2022).

Subsequently, on August 25, 2023, the Board issued a new decision and order (the 2023 Decision) that affirmed the ALJ’s findings regarding Exxon’s refusal to bargain in good faith.

Petition for review. ExxonMobil Technology petitioned for review of a Board order finding it liable for unfair labor practices in violation of the NLRA. The petition challenged not only the NLRB’s substantive findings, but also, the vacatur of an earlier decision due to the participation of a conflicted Board member. The Fifth Circuit panel found that the Board’s vacatur did not constitute an abuse of discretion and concluded that the Board’s substantive conclusions were supported by substantial evidence. Exxon’s conceded position on the supervisor PTO review issue crossed the line from hard bargaining into unlawful obstruction. Accordingly, the appeals court denied ExxonMobil’s petition for review and granted the NLRB’s cross-petition for enforcement of its order.

En banc poll. In the en banc poll, four judges voted in favor of rehearing, while 13 judges voted against rehearing.

Concurring in denial of rehearing en banc. Judge Ho concurred in the denial of the rehearing in banc. He pointed out that the issue before the appeals court was not how the three-judge panel should have decided this case, but whether all s17 should now rehear it. Judge Ho pointed out that this petition features a First Amendment claim that the party never presented to the panel. Assuming that this theory was wrongly neglected by prior counsel, Judge Ho argued that counsel should litigate diligently before the three-judge panel, before insisting on the attention of all 17 members of the court.

Dissenting from the denial of rehearing en banc. The dissenters argued that the NLRB made a naked power grab, and it prioritized political gamesmanship over finality and repose. Judge Oldham observed that in doing so, the Board revealed many of the constitutional problems associated with so-called independent agencies.

Modern administrative law, Oldham observed, rests on two fundamental propositions. First, we assume that administrative agencies exercise the President’s executive power. Second, and relatedly, we assume that administrative agencies are subject to presidential oversight in wielding the President’s executive power.

Independent agencies. In Judge Oldham’s view, “unlike executive agencies supervised and directed by the President, independent agencies sit uncomfortably at the outer periphery of the Executive Branch.” The defining characteristic of their independence is that Congress can limit the President’s power to remove the leaders of independent agencies. That tenure protection permits agency members to “maintain an attitude of independence against the [President’s] will.” In addition to straying beyond the President’s supervision, independent agencies also stray beyond the President’s executive power. The Supreme Court has recently indicated, however, that the quasi-power doctrine is ripe for reconsideration, Trump v. Wilcox, 145 S. Ct. 1415, 1415 (2025).

If the quasi-power doctrine is open to reconsideration, other tenets of independent agencies should be too. But cracks in the theoretical foundation for independent agencies are readily apparent. This case illustrates the perils of non-neutral, politicized decisionmaking in an independent agency.

Rule-of-law protections undermined. First, this case demonstrates that “independent” agencies are not so independent from politics after all. Apparently, the NLRB can vacate any order it wants, no matter how old, so long as a petition for review has not been filed in our court. The consequences of that rule are far-reaching.

The NLRA authorizes petitions for review only by a “person aggrieved by a final order of the Board.” In administrative law, terms like “aggrieved” often sweep broadly, typically covering “any petitioner with an interest arguably sought to be protected by the statute.” But that broad language does not change the constitutional requirements to invoke our jurisdiction—namely, that a petitioner must have suffered an injury in fact. So how can a prevailing employer ever show injury stemming from an adjudication it won?

Political control. Second, the NLRB’s incentives are equally flawed. Each time its political control changes, the Board can scour its archives, handpick the decisions it disagrees with, and reopen them at will for any reason (or no reason at all). The resulting uncertainty will benefit no one. And when personnel changes dictate legal rules, it undermines faith in our “government of laws, and not of men.” And too often an agency’s “independence” is just a myth, and its supposed expertise becomes subservient to its political agenda.

Judge Oldham argued that this precedent endows the NLRB with independence not just from presidential supervision, but also from bedrock rule-of-law principles. In his view, the panel holds that nothing can limit the Board’s statutory authority to reopen long-dormant cases. Why should “independent” agencies have the power to render dispositive, preclusive judgments as if they were courts—but without the attendant limitations that subordinate courts to the rule of law?

Judge Oldham concluded that refusing to rehear the panel decision undermines the rule-of-law protections meant to legitimize those agencies. Thus, he argued that the Fifth Circuit should have reheard the case en banc. Accordingly, he dissented.

The case is No. 23-60495.

Judge: Per curiam.

Attorneys: Daniel D. Schudroff (Jackson Lewis) for ExxonMobil Research & Engineering Co., Inc. n/k/a ExxonMobil Technology and Engineering Co. Ruth E. Burdick for NLRB.

Companies: ExxonMobil Research & Engineering Co., Inc.; ExxonMobil Technology and Engineering Co.

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