- within Compliance topic(s)
On October 28, 2025, the U.S. Court of Appeals for the Ninth Circuit upheld the structure and authority of the National Labor Relations Board ("NLRB") against three constitutional challenges in NLRB v. North Mountain Foothills Apartments LLC (9th Cir. Oct. 28, 2025).
In enforcing the NLRB's finding that the employer, North Mountain Foothills Apartments ("North Mountain"), committed an unfair labor practice when it fired an employee after he discussed his wages and working conditions with other co-workers, the Ninth Circuit held: (1) the removal protections for NLRB's Administrative Law Judges ("ALJ") do not violate Article II of the Constitution; (2) NLRB's unfair labor practice proceedings do not deprive employers of the right to jury trials; and (3) the NLRB's dual, investigative-adjudicative, role does not violate due process.
This decision joins a growing body of appellate decisions confronting constitutional challenges to the NLRB's structure and adjudicatory authority. Notably, the Fifth Circuit recently invalidated the removal protections for NLRB members and ALJs. Our analysis on the Fifth Circuit's decision can be found here.
Case Background
In August 2021, North Mountain hired Jasper Press as a maintenance technician for its apartment complex in Phoenix, Arizona. It offered Press $25 per hour, with free housing in lieu of a bonus. During Press's first week, he discussed his compensation and working conditions with several co-workers, noting his housing stipend, hourly wage, poor maintenance conditions, and an infestation problem at the apartment complex. North Mountain's managers reacted poorly to Press's discussions, called him into a meeting to reprimand him, and instructed him not to discuss these matters with his co-workers any further. North Mountain then terminated Press the day after this meeting, citing alleged performance issues. Press filed an unfair labor practice charge with the NLRB. After a hearing, an ALJ found that North Mountain committed unfair labor practice by interrogating Press about protected activity, issuing unlawful directives restricting discussion of wages, threatening reprisals, and discharging him for engaging in concerted activity. The NLRB affirmed and ordered reinstatement, back pay, and notice posting.
Article II Challenge: Removal Protections of ALJs
On appeal, North Mountain argued that the NLRB's ALJs are unconstitutionally insulated from presidential power to remove officers because they can only be removed by the NLRB, with the approval of the Merit Systems Protection Board (whose members also enjoy removal protections). This argument echoes the reasoning that found success in the Fifth Circuit's SpaceX matter earlier this year.
The Ninth Circuit rejected North Mountain's arguments, holding that Article II does not require at-will removal of ALJs. The Court recognized the Fifth Circuit SpaceX decision as well as the Supreme Court's recent stay of an order enjoining President Trump's firing of former NLRB member Gwynne Wilcox. While it acknowledged the ongoing constitutional debate, the Court reasoned that Humphrey's Executor v. United States (1935), which recognized the legislature's authority to limit presidential removal power over "principal officers" in multimember expert bodies that perform quasi-legislative or quasi-judicial functions, remains good law.
The Ninth Circuit also reasoned that because the President had not attempted to remove the ALJ who rendered the decision, North Mountain did not suffer any harm, and its constitutional challenge was moot. This analysis differed from the Fifth Circuit's finding that being subjected to proceedings held by unconstitutionally insulated ALJs constituted harm in and of itself.
Seventh Amendment Challenge: Right to Jury Trial
North Mountain then argued that the NLRB's administrative adjudication of unfair labor practices deprived employers of the right to a jury trial under the Seventh Amendment. The Court rejected this argument, reaffirming NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937), which held that NLRB proceedings are "unknown to the common law" and equitable in nature.
The Court also addressed the NLRB's 2022 decision, which expanded "make-whole" relief to include foreseeable consequential damages. North Mountain argued that these new NLRB remedies were compensatory damages akin to tort relief, triggering a right to jury trial. The Ninth Circuit disagreed, relying on its recent decision in Macy's, Inc. v. NLRB (9th Cir. 2025), which characterized this relief as restorative, not punitive. Therefore, they are "equitable" in nature and would not trigger any right to a jury trial.
Due Process Challenge: Dual Investigative and Adjudicatory Roles
North Mountain last argued that the NLRB's dual role in investigating and adjudicating unfair labor practices violated due process. The court summarily rejected this claim, and held that because the NLRB's General Counsel investigates and prosecutes cases while theboard and its ALJs adjudicate them, the Agency's structure does not assign both functions to a single individual. In reaching this decision, the Court relied on Supreme Court precedent FTC v. Cement Institute, 333 U.S. 683 (1948), and Ninth Circuit precedent such as United States v. Litton Industries, 462 F.2d 14 (9th Cir. 1972).
Takeaways
For employers in the Ninth Circuit this case signals that constitutional challenges to the NLRB's authority and structure remain an uphill battle. This includes employers in Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington, as well as the territories of Guam and the Northern Mariana Islands. While the Ninth Circuit rejected constitutional challenges to job protections for Board members and ALJs, the D.C. Circuit – which can hear all Board decision appeals – has yet to decide the issue on the merits. As a result, unless and until the Supreme Court ultimately settles the matter, employers seeking to issue such challenges should preserve them by asserting them at their first priority in a Board proceeding. We will continue to monitor future constitutional attacks on the NLRB, including how the Supreme Court may ultimately decide the constitutional issue on our blog. Employers with questions about how the decision affects them and what constitutional challenges they may raise in pending unfair labor practice cases should consult experienced labor counsel.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
