Courts of Appeals Disrupt NLRB Enforcement, Reinstatement and OSHA Awards
Two circuits in September 2026 rejected key NLRB theories, including the union-dress-code presumption and organizing-surveillance findings; the Seventh Circuit narrowed Section 10(j) relief.
September 2026 produced a notably employer-favorable appellate set for labor clients. In Siren Retail Corp. v. NLRB (2d Cir.), the court vacated an unfair labor practice order on union-logo dress codes and rejected the Board's Tesla presumption, holding the agency exceeded its authority by applying strict scrutiny-like review to facially neutral policies and directing a "more evenly measured balancing test" weighing Section 7 intrusion, facial neutrality and consistent enforcement, and context. In Starbucks Corp. v. NLRB (5th Cir.), the court declined to enforce most of the Board's order, finding no evidence that store-hour cuts and a hiring-freeze remark were threats or that the manager's union comments amounted to surveillance.
Two collateral holdings matter beyond the NLRA: the Eighth Circuit vacated a DOL Administrative Review Board OSHA-retaliation award in BNSF Railway, holding the "public rights" exception did not apply and the employer is entitled to a jury trial; and the D.C. Circuit in Doe v. SEC upheld denial of a whistleblower award where the report fell outside the 120-day window after disclosure to another agency. The Seventh Circuit in Hamada v. Laborforce held Section 10(j) injunctions require proof of irreparable harm, rejecting any presumption resting on disrupted bargaining.
Watch for certiorari petitions, NLRB re-hearing or policy response, and how district courts apply the new balancing test.