How the U.S. Supreme Court Is Reshaping the NLRB

Categories: Employment Compliance, Labor Management Relations, Trump Administration

What employers should know about key developments this week:

Agencies Lose Their Independence: In Trump v. Slaughter, the U.S. Supreme Court held that federal agencies such as the National Labor Relations Board (NLRB) are not “independent.” The NLRB’s Board members and General Counsel serve at the President’s pleasure and can be removed at any time, for any reason—or for no reason.
The Ripple Effect on the NLRB: Although the Slaughter ruling doesn’t affect other positions at the NLRB, it has the potential to have a significant trickle-down effect on those who report to the NLRB’s Board members or General Counsel. This will likely be compounded by the administration’s efforts to remove civil service protections for many positions at the NLRB as well as other agencies.
A New Circuit Split on the Standard for Section 10(j) Injunctions: Applying the traditional four-part test for the first time since the Supreme Court’s decision in Starbucks Corp. v. McKinney, the U.S. Court of Appeals for the Sixth Circuit declined to accept an NLRB Regional Director’s contention that irreparable harm would result from an employer’s refusal to bargain, splitting with the Ninth and Fourth Circuits over the standard for granting injunctive relief under Section 10(j) of the National Labor Relations Act.

In this episode of Employment Law This Week^®, Epstein Becker Green attorneys Steven M. Swirsky and William P. Lewis break down how the Supreme Court’s latest term is reshaping the NLRB and the standards courts use when reviewing its actions.

The NLRB Is No Longer Independent—What Employers Need to Know
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July 8, 2026
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Transcript

[00:00:04] George Whipple: Welcome to Employment Law This Week. I'm George Whipple. The US Supreme Court closed out its '25-'26 term with a batch of highly anticipated decisions that limit the authority of quasi-independent federal agencies. The biggest impact is likely to come from Trump v. Slaughter, which addresses the president's ability to remove congressionally confirmed leaders.

[00:00:32] George Whipple: Today we take a look at how the Court’s rulings are changing things at one such agency: the NLRB. Epstein Becker Green’s Steve Swirsky works with clients that have union-represented employees and other business before the Labor Board. We asked him what impacts he expects from Slaughter.

[00:00:51] Steve Swirsky: What Trump v. Slaughter says is that they are not independent. What that means is that agencies like the NLRB, the Board members and the General Counsel are essentially at-will employees who serve at the pleasure of the president. They can be terminated at any time by the president for any reason or no reason. That is a monumental change in the regulatory state that has existed literally for ninety years. At this point, Trump v. Slaughter doesn't affect other positions at the NLRB or other similar agencies other than those that are subject, that are a presidential appointment and subject to confirmation. But it has the potential to have a significant trickle-down effect on those who report to either the General Counsel or the Board members.

[00:01:54] George Whipple: Traditionally, the NLRB has had three members from the president's party and two members from the party that is out of power. But that is not mandated by the statute or any regulation. We may see changes to this practice in the immediate future with Board Member David Prouty, a Democrat currently nominated for a new term.

[00:02:15] George Whipple: SCOTUS has been focused on agency authority for several years. Last term, in Starbucks Corp. v. McKinney, the Court weighed in on the standard the courts use when the NLRB applies for a Section 10(j) injunction. Epstein Becker Green’s Bill Lewis has some background.

[00:02:33] Bill Lewis: Section 10(j) allows the Board to seek a preliminary injunction in federal court to stop an unfair labor practice during the pendency of some kind of Board proceeding. And so, in Starbucks Corp. v. McKinney, the Supreme Court resolved a circuit split addressing the standard that courts should apply when reviewing applications for a Section 10(j) injunction.

[00:03:01] George Whipple: Prior to Starbucks Corp. v. McKinney, some circuits, including the Sixth, applied a less stringent standard that reduced the burden of proof for the NLRB. The Supreme Court rejected that standard and held that the traditional four-part test should be applied to 10(j). Now, in NLRB v. Trinity Health Grand Haven Hospital, the Sixth Circuit has had its first opportunity to consider the issue post-Starbucks.

[00:03:30] Bill Lewis: The Sixth Circuit held that the regional director had failed to show that it would suffer irreparable harm without an injunction being granted. And specifically, in holding that, the Sixth Circuit took the position that it was insufficient for the regional director to simply point to the fact that the employer was not, or was refusing to bargain in order to prove irreparable harm.

[00:03:53] George Whipple: This appears to open up a new circuit split on the irreparable harm issue.

[00:03:58] Bill Lewis: The Sixth Circuit declined to adopt a presumption or a permissible inference of irreparable harm when an employer refuses to bargain with a union. This puts the Sixth Circuit at odds with at least the Ninth and Fourth Circuits, which on this issue permit a permissible inference.

[00:04:21] George Whipple: 10(j) injunctions are considered an extraordinary remedy and used sparingly. Still, the issue shows us how the Supreme Court’s push to limit agency authority and independence is playing out in lower courts, and the uncertainty that may be in store as the effects of decisions like Trump v. Slaughter are felt around the nation. Thanks, Bill and Steve. And thank you for watching. We’ll see you next time.

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