In Securities and Exchange Commission v. Jarkesy earlier this year, the Supreme Court ruled that the constitutional guarantee of the right to trial by jury still counts in administrative cases. Earlier in that case, the Fifth Circuit Court of Appeals also ruled that the way in which SEC administrative-law judges (ALJs) are appointed and protected from removal violates Article II of the Constitution, which vests executive power in the president.
The SEC is hardly the only federal agency with a similar structure. The National Labor Relations Board is another one. It, too, can initiate enforcement actions internally that deny defendants a trial by jury and instead put them before an ALJ who works for the agency.
Mark Pittman is a district-court judge for the Northern District of Texas, which appeals to the Fifth Circuit. He granted a preliminary injunction to halt an NLRB case for the exact same reasons the SEC’s process was ruled unconstitutional by the Fifth Circuit in Jarkesy. In doing so, he was straightforwardly upholding precedent.
Yet he has been denounced as a “Trump judge” who is working to help evil, greedy corporations stomp on workers’ rights.
First, let’s look at Pittman’s decision. The company Findhelp was accused of violating labor law by its employees’ union, the Office and Professional Employees International Union. The NLRB began its internal ALJ process that resembles the SEC process that the Fifth Circuit ruled unconstitutional. So Findhelp requested a preliminary injunction to stop the proceedings.
“In this case, the NLRB ALJs are afforded the same two layers of for-cause removal protections that the Fifth Circuit found to be unconstitutional with regard to the SEC ALJs,” Pittman wrote. “In fact, the NLRB has not, and cannot, offer any distinction between the relevant provisions or the protections they confer upon the ALJs.”
The NLRB believes Jarkesy was wrongly decided. But Pittman is a district-court judge, bound by Fifth Circuit precedent. If it was unconstitutional for the SEC to have in-house courts with judges protected from removal, it is also unconstitutional for the NLRB to do the same thing.
That’s the meat of the decision. There are also legal technicalities about when preliminary injunctions are allowed, each of which Pittman explained were cleared in this case. Being subject to an unconstitutional process is an irreparable injury, and because the government is the opposing party, it is in the public interest to stop it.
But of course, progressives don’t believe the law is about the law. They believe it is about getting the results they want. The result they want is a powerful NLRB, and Pittman just undermined it.
They see the NLRB as a defender of workers, even though 94 percent of American workers don’t have much interest in the cases the NLRB hears. That’s because only 6 percent of American workers are members of private-sector unions. Though the provisions of the National Labor Relations Act apply to most private-sector workers, the cases the NLRB adjudicates are mostly between unions and private employers (public-sector labor relations are under a different agency).
Democrats’ vision for the agency is that every case is an auto-win for unions. Workers want a secret-ballot election? Too bad; unions can gain exclusive bargaining rights through card check. Workers actually voted against a union? That can’t be right; the NLRB will demand a do-over. Employers think they have free-speech rights? Wrong; the NLRB will prevent them from sharing their views on unionization and even punish them for jokes on social media.
For actual unfair labor practices, there’s a wonderful thing called a federal court, with rules of evidence, a presumption of innocence, and the right to a trial by jury. It is slower than the NLRB and less biased against employers — and that’s why it’s better.