A federal judge in Michigan on Friday became the latest to reject claims that the National Labor Relations Board's structure is unconstitutional, saying existing legal precedent foreclosed arguments by a hospital operator.
U.S. District Judge Robert Jonker in Grand Rapids said that NLRB administrative judges and the board's five members are not improperly shielded from at-will removal by the president, citing past cases involving similar claims about officials at other federal agencies.
Jonker denied Trinity Health (TRNTY.UL) Grand Haven Hospital's motion to dismiss an NLRB petition seeking to force it to bargain with a union representing nurses and other workers that it sought to decertify after acquiring the hospital in 2022. In a separate opinion, the judge granted the board's petition and ordered Trinity to bargain pending the outcome of an underlying administrative case.
Jonker, an appointee of Republican former President George W. Bush, said the growing number of challenges to the board's structure and powers "are both complicated and consequential," but are not new.
"The issues raised in [Trinity's] motion have been squarely addressed by several court decisions" involving agencies with similar structures to the NLRB including the Federal Trade Commission, the Federal Deposit Insurance Corporation, and the Consumer Financial Protection Bureau, Jonker wrote.
An NLRB spokeswoman and lawyers for Trinity did not immediately respond to requests for comment.
A federal judge in Pittsburgh came to the same conclusion as Jonker on Tuesday in a case involving a newspaper publisher, though she acknowledged that deference to existing legal precedent "appears less 'in vogue' as of late."
Both that judge and Jonker said they agreed with a September ruling by a federal judge in Detroit rejecting an auto parts maker's challenge to the board. The Ohio-based 6th U.S. Circuit Court of Appeals declined to block an NLRB case against the company from proceeding pending its appeal, and the U.S. Supreme Court last week refused to get involved.
Three Republican-appointed judges in Texas have gone the other way. They all cited a 2022 ruling by the New Orleans-based 5th Circuit, which covers Texas, that said U.S. Securities and Exchange Commission judges were unlawfully insulated from removal by the president. The U.S. Supreme Court in June affirmed that ruling on different grounds and did not reach the removal issue.
Jonker on Friday acknowledged the split, but said he was bound by a 2022 6th Circuit decision that upheld removal protections for administrative judges with the FDIC.
The judge also said that a 1935 Supreme Court ruling upholding the structure of the FTC, which like the labor board has five members who make policy and decide individual cases, applied to the NLRB.
The case is Kerwin v. Trinity Health Grand Haven Hospital, U.S. District Court for the Western District of Michigan, No. 1:24-cv-00445.
For the NLRB: Patricia Fedewa, Richard Fanning, and Steven Carlson
For Trinity: Brian Shekell and Lauren Smith of Clark Hill
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