We have been tracking the ongoing challenges to the National Labor Relations Board’s (“NLRB” or “Board”) power to issue enhanced remedies under Thryv, Inc., 372 NLRB No. 22 (2022). In Thryv, the Board held that employees aggrieved by an unfair labor practice (“ULP”) charge under the National Labor Relations
Off the Rails? Union Asks Supreme Court to Rein in Fifth Circuit
By Joshua Fox & Taylor Arluck on
We have been tracking the wave of constitutional challenges to the National Labor Relations Board’s (“NLRB” or “Board”) structure and the divergent injunction standards emerging across circuits. (See here, here, here and here.)
In the latest development, on October 31, 2025, the Office and Professional Employees International…
Context Matters: Eighth Circuit Backs Home Depot’s Ban on BLM Apron Message Due To “Special Circumstances”
By Joshua Fox & Taylor Arluck on
On November 6, 2025, the Eighth Circuit vacated and remanded a split decision from the National Labor Relations Board (“NLRB” or “Board”), holding that the Board improperly rejected Home Depot’s “special circumstances” and business-justification defenses to banning an employee’s BLM message on a customer-facing apron.
We previously covered the factual…
Fifth Circuit Denies Enforcement of NLRB’s Enhanced Remedies, Widening Circuit Split
By Joshua Fox & Taylor Arluck on
On October 31, 2025, the Fifth Circuit held that the National Labor Relations Board (“NLRB” or “Board”) impermissibly awarded compensatory damages to striking employees who were fired. As we reported here, the court’s ruling widens a circuit split between the Third and Ninth Circuits on available remedies under the…
Rejected: Ninth Circuit Denies Constitutional Attacks on NLRB
By Joshua Fox & Taylor Arluck on
On October 28, 2025, the Ninth Circuit, in a unanimous, published decision, rejected three key constitutional attacks on the National Labor Relations Board (“NLRB” or “Board”), some of which have gained favor in other circuit courts, making it harder—for now—for employers to challenge Board proceedings in that jurisdiction. This decision…
UPDATE: NLRB Files Suit Against California for Dramatically Expanding State Labor Board’s Powers to Cover Employees Under NLRB’s Exclusive Jurisdiction
By Mark Theodore & Taylor Arluck on
On September 30, 2025, California Governor Gavin Newsom signed into law AB 288, which amends the state’s labor law and significantly expands the power of its Public Employment Relations Board (“PERB”) to cover private-sector employees currently under the exclusive jurisdiction of the National Labor Relations Board (“NLRB” or “Board”).
Under…
Takeaways From Ninth Circuit’s Revival Of Trader Joe’s Trademark Infringement Suit Against Independent Union Over Labor-Branded Merchandise
By Mark Theodore & Taylor Arluck on
The Ninth Circuit’s recent resurrection of Trader Joe’s trademark infringement suit over an independent union’s sale of apparel, mugs, tote bags, and other labor-branded merchandise that allegedly infringed the company’s intellectual property highlights key issues at the intersection of federal labor and IP law.
The case, Trader Joe’s Co. v.