Labor & Employment Law Daily Wrap Up, NLRB NEWS—New lawsuit challenges NLRB Acting General Counsel’s authority, raises concerns about due process, (Nov 5, 2025)

By Brandi O. Brown, J.D.

In the lawsuit, the employer argues that it “will not receive a fair trial if both the prosecutor and the deciders of law and fact answer to the same entity.”

Coway USA, Inc., an employer and provider of air and water filtration systems, has filed suit against the NLRB and its Acting General Counsel, William Cowen, along with an NLRB board member and others, seeking declaratory and injunctive relief based on the claim that the defendants are pursuing an unconstitutional administrative proceeding against it. The employer argues that (1) Cowen is no longer serving lawfully as General Counsel and any proceeding by him is illegitimate; (2) the NLRB’s ALJs are not lawfully appointed and Board Members are removable at will by the President; and (3) the NLRB’s enforcement scheme lacks due process because both prosecutor and adjudicators are freely removable by the President.

Specifically, Coway seeks to enjoin an administrative complaint that was issued against it by Region 31 of the NLRB in late July 2025, based on an unfair labor practice charge lodged by the California Restaurant and Retail Workers Union (CRRWU) in 2022. Region 31 set a hearing to take place on December 9, 2025.

Forty days have passed. However, the employer alleges that the Acting General Counsel’s actions violate the National Labor Relations Act, as well as the Federal Vacancies Reform Act (FVRA), and thus are void. Cowen was appointed on February 3, 2025, the employer alleges, and his 40 days as Acting General Counsel expired in March, prior to the president’s nominating of Crystal Carey for the permanent role.

“Where a different NLRB General Counsel may have determined a different outcome, i.e. not issuing a complaint whatsoever,” the complaint states, citing a 2017 D.C. federal district court decision, “the Acting NLRB General Counsel’s actions in issuing the complaint are “non-harmless,” and the underlying administrative complaint must be dismissed.” Without injunctive relief, the complaint argues, the employer will be required to undergo illegitimate proceedings in violation of its due process rights.

ALJs and board members. The complaint also claims that the NLRB’s ALJs are not lawfully appointed and points to court decisions holding that the ALJs are unconstitutionally insulated from removal. In one such decision, the employer argues, VHS Acquisition Subsidiary No. 7 v. NLRB, the D.C. federal district court severed a provision from 5 U.S.C. 7521(a), leaving ALJs removable at will and leaving the president separated from them by only a single level of tenure. That order, the employer urges, is res judicata and prevents the defendants from relitigating this issue.

“Because the ALJ set to be assigned to the underlying administrative hearing was assigned under an unconstitutional provision,” the complaint claims, “the ALJ’s appointments were unlawful. The ALJ cannot properly oversee the underlying administrative case.” NLRB ALJs were not lawfully appointed, the complaint adds, “because Congress improperly restricted the power of the President to remove subordinate officers of the Executive Branch.”

Member removal. Board members also came in for arguments in the complaint, which pointed to the Fifth Circuit’s determination in August that “three employers made the necessary showing of irreparable harm if forced to continue with administrative proceedings under the NLRB’s unconstitutional structure, ‘specifically, the dual for-cause removal protections shielding both Board Member and ALJs.’ Space Exploration Tech. Corp. v. NLRB, Case No. 24-50627, Docket No. 269-1 at *5 (5th Cir. Aug. 19, 2025).”

That determination, the complaint continues, “is consistent with” the U.S. Supreme Court’s opinion earlier this year in Trump v. Wilcox,” in which the High Court granted an administrative stay to an order reinstating a NLRB Member, explaining that “[b]ecause the Constitution vests the executive power in the President, see Art. II, §1, cl. 1, he may remove without cause executive officers who exercise that power on his behalf, subject to narrow exceptions recognized by our precedents, see Seila Law LLC v. Consumer Financial Protection Bureau, 591 U. S. 197, 215−218 (2020).”

Not due process. Finally, the complaint makes a claim, reincorporating the other allegations, that the NLRB’s enforcement scheme lacks due process because both the prosecutor and adjudicators are each freely removable by the president. Here, the removal of the second layer of protection for ALJs in VHS Acquisition Subsidiary No. 7 is key because it means that the president is “separated from [ALJs’] by only a single level of tenure” and ALJs are removable at will by the NLRB. NLRG General Counsel, the complaint adds, is “also freely removable at the will of the President,” as noted by the Fifth, Sixth, and Ninth Circuits.

“Defendants cannot contest the right of the President to terminate the NLRB General Counsel as the vacancy that Mr. Cowen was appointed to fill arose only because President Trump fired the Senate confirmed NLRB General Counsel immediately prior to Mr. Cowen’s appointment as Acting General Counsel.”

“The ALJ serves at the pleasure of the President and the General Counsel serves at the pleasure of the President,” the complaint explains. “Similarly, Board Members are subject to removal by the President other than for cause and, thus, the ultimate deciders of law and fact also serve at the pleasure of the President.”

No fair trial possible. “As a result of the fact that both the prosecutor in this case, an Acting General Counsel (and/or a Senate-confirmed General Counsel), and the decider(s) of fact and law, the ALJ and/or Members of the NLRB, both serve at the pleasure of the President, both are incentivized to do the President’s bidding and it follows that all serve the same interests,” the complaint argues. “This scheme leaves the only party who does not answer to the President to be the General Counsel’s opponent—in this case: Coway.” And it “will not receive a fair trial if both the prosecutor and the deciders of law and fact answer to the same entity.”

The lawsuit was filed in the District of Columbia; the case is No. 1:25-cv-03853.

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