A film producer has asked a U.S. appeals court to rule that the National Labor Relations Board's in-house proceedings violate the U.S. Constitution and that the agency lacks the power to order employers to pay money damages to workers who are illegally fired.
David Wulf, a one-time lawyer who has produced more than 40 movies since 2010, filed a brief with the Denver, Colorado-based 10th U.S. Circuit Court of Appeals on Thursday arguing that a pair of recent U.S. Supreme Court rulings limiting the powers of federal agencies apply to the NLRB.
The case will likely be among the first in a series of pending legal challenges to the NLRB's structure filed by Elon Musk's SpaceX, Starbucks, Amazon.com, Macy's and other employers to yield a decision from an appeals court.
The board in March had ruled that two production companies owned by Wulf illegally fired transportation workers who went on strike while hauling production equipment for a pair of Hallmark movies. The companies were ordered to reinstate the workers, provide them with backpay, and reimburse them for any costs they incurred as a result of being fired.
Wulf has denied wrongdoing and his lawyers at the Pacific Legal Foundation, a libertarian group, urged the 10th Circuit on Thursday to reverse the NLRB ruling on the merits. But they went further, also asking the court to hold that the board has no power to order compensatory damages in administrative cases.
"Permitting NLRB to implement such a capacious reading of its remedial power would transform the Board from agents tasked with carrying out a declared congressional policy into unaccountable ‘ministers’ who assume the role of lawmaker," Wulf's lawyers wrote.
An NLRB spokeswoman declined to comment.
The San Francisco-based 9th Circuit is also considering the impact of the Jarkesy ruling on the NLRB in a case involving Macy's building engineers who were locked out by the company after going on strike.
Federal labor law permits the board to order employers to reinstate workers who illegally lost their jobs, and also to grant workers remedial damages to make them whole such as backpay and lost benefits.
The board had applied Thryv in Wulf's case, ordering his companies to make workers whole for "any direct or foreseeable pecuniary harms" stemming from being fired.
In Thursday's brief, Wulf's lawyers said the board's attempt to expand the remedies available to workers was illegal, and that only courts can order the kind of compensatory damages discussed in the Thryv ruling.
They also said that the Supreme Court's June ruling in Loper Bright Enterprises v. Raimondo, which eliminated the deference that courts owed to federal agencies in interpreting laws they enforce, means that the 10th Circuit does not have to defer to the NLRB's reading of federal labor law.
"Judges — not agencies — are the experts in the “field” of legal interpretation, a field which is emphatically the province and duty of the judicial department," Wulf's lawyers wrote.
The case is 3484 Inc v. NLRB, 10th U.S. Circuit Court of Appeals, No. 24-9511.
For the companies: Oliver Dunford and Aditya Dynar of the Pacific Legal Foundation
For the NLRB: Ruth Burdick
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