Amicus Curiae Brief — Garten Trucking LC, Petitioner v. National Labor Relations Board, et al.

No. 26-84

In the

Supreme Court of the United States

GARTEN TRUCKING LC,

Petitioner,

v.

NATIONAL LABOR RELATIONS BOARD, et al.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of A ppeals for the Fourth Circuit

BRIEF OF THE MANHATTAN INSTITUTE

AND YUGO COLLINS, PLLC AS AMICI

CURIAE IN SUPPORT OF PETITIONER

Ilya Shapiro

Trevor Burrus

Manhattan Institute

52 Vanderbilt Avenue

New York, NY 10017

Mia Yugo

Counsel of Record

Christopher E. Collins

Yugo Collins, PLLC

21 Franklin Road SW

Roanoke, VA 24011

(540) 855-4791

mia@yugocollins.com

132377

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . ii

INTEREST OF AMICUS CURIAE . . . . . . . . . . . . . . . 1

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . 1

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

I.

The Petition is an Ideal Vehicle to Resolve

the Circuit Split Affecting Millions of

Workers and Businesses in America . . . . . . . . . . 5

II. The Major Questions Doctrine Does Not

Authorize the use of Bargaining Orders

and Prohibits the Board’s Self-Serving

Statutory Interpretation . . . . . . . . . . . . . . . . . . 10

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

ii

TABLE OF CITED AUTHORITIES

Cases

Page

Alaris Health at Blvd. E. v. NLRB,

123 F.4th 107 (3rd Cir. 2024) . . . . . . . . . . . . . . . . . . 8, 9

Biden v. Nebraska,

600 U.S. 477 (2023) . . . . . . . . . . . . . . . . . . . . . . . . 14, 19

Brown-Forman Corp. v. NLRB,

169 F.4th 646 (6th Cir. 2026) . . . . . . . . . . . . . . . . . 9, 10

Cemex Construction Materials Pacific, LLC,

372 NLRB No. 130 (2023) . . . . . . . . . . . . . . 2, 9, 10, 19

Dept. of Transp. v. Ass’n of Am. R.R.,

575 U.S. 43 (2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Franks Bros. Co. v. NLRB,

321 U.S. 702 (1944) . . . . . . . . . . . . . . . 3-5, 11-14, 16-20

Garten Trucking LC v. NLRB,

2026 U.S. App. LEXIS 4796 (4th Cir. 2026) . . . . . . . 6

Hosp. Menonita de Guayama, Inc. v. NLRB,

2026 U.S. App. LEXIS 21642 (D.C. Cir. 2026) . . . 6, 16

Int’l Bhd. of Teamsters v. NLRB,

2026 U.S. App. LEXIS 11277 (9th Cir. 2026) . . . . . 10

Kerwin v. Trinity Health Grand Haven Hosp.,

174 F.4th 942 (6th Cir. 2026) . . . . . . . . . . . . . . . . . . . 11

iii

Cited Authorities

Page

King v. Burwell,

576 U.S. 473 (2015) . . . . . . . . . . . . . . . . . . . . . . . . 14, 19

Koons Ford of Annapolis, Inc. v. NLRB,

1987 U.S. App. LEXIS 18752 (4th Cir. 1987) . . . . 10, 11

Learning Res., Inc., v. Trump,

607 U.S. 229 (2026) . . . . . . . . . . . . . . . . . . . . . . . . 18, 19

Lechmere, Inc. v. NLRB,

502 U.S. 527 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . 6, 16

Loper Bright Enterprises v. Raimondo,

603 U.S. 369 (2024) . . . . . . . . . . . . . . . . . . . 1, 2, 5-10, 14

NLRB v. Gissel Packing Co.,

395 U.S. 575 (1969) . . . . . . . . 3, 5, 6, 9-11, 13, 14, 16-20

NLRB v. Katz,

369 U.S. 736 (1962) . . . . . . . . . . . . . . . . . . . . . . . . 11, 12

NLRB v. P. Lorillard Co.,

314 U.S. 512 (1942) . . . . . . . . . . . . . . . 3-5, 11-14, 16-20

NLRB v. Starbucks Corp.,

159 F.4th 455 (6th Cir. 2025) . . . . . . . . . . . . . . . 7, 8, 11

Perez v. Mortg. Bankers Ass’n,

575 U.S. 92 (2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

iv

Cited Authorities

Page

Phelps Dodge Corp. v. NLRB,

313 U.S. 177 (1941) . . . . . . . . . . . . . . . . . . . . . . 13, 15, 18

Starbucks v. McKinney,

602 U.S. 339 (2024) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

United Nat. Foods, Inc. v. NLRB,

138 F.4th 937 (5th Cir. 2025) . . . . . . . . . . . . . . . . . . 7, 8

West Virginia v. EPA,

597 U.S. 697 (2022) . . . . . . . . . . . . . . . . . . 10, 13, 15, 19

Whitman v. American Trucking Ass’ns, Inc.,

531 U.S. 457 (2001) . . . . . . . . . . . . . . . . . . . . . . . . 17, 19

Statutes and Other Authorities

U.S. Const., art. I, § 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

29 U.S.C. § 160(a) . . . . . . . . . . . . . . . . . . . . . . . 3, 10, 12, 18

29 U.S.C. § 160(c) . . . . . . . . . . . . . . 3, 4, 7, 10-12, 14, 15, 18

1 William Blackstone, Commentaries on the Laws

of England (William S. Hein & Co., Inc. 1992)

(1765) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

The Federalist No. 51 (James Madison) (Clinton

Rossiter, ed., 1961) . . . . . . . . . . . . . . . . . . . . . . . . . 17, 18

v

Cited Authorities

Page

John Locke, The Second Treatise of Government

(Thomas P. Peardon ed., Prentice-Hall, Inc. 1997)

(1690) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Montesquieu, Spirit of the Laws

(O. Piest ed., T. Nugent transl. 1949) . . . . . . . . . . . . . 18

S. Ct. R. 37.6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

1

INTEREST OF AMICUS CURIAE1

The Manhattan Institute (MI) is a nonprofit policy

research foundation that works to keep America and

its great cities prosperous, safe, and free. MI develops

and disseminates ideas that foster individual freedom

and economic choice across multiple dimensions. To that

end, it produces scholarship and files briefs supporting

constitutionally limited government and the rule of law,

ensuring that administrative agencies are kept within

their constitutionally delineated role.

Yugo Collins, PLLC is a Virginia law firm focusing on

labor and employment law, whistleblower protection, and

constitutional disputes with administrative agencies. The

firm frequently represents American workers in sensitive

employment matters in federal court. It has successfully

tried numerous cases to verdict and served as appellate

counsel in other major disputes implicating the NonDelegation Doctrine, the Major Questions Doctrine, and

the overreach of administrative agencies.

SUMMARY OF ARGUMENT

This case presents a vehicle to resolve a circuit split

on an important issue affecting millions of American

workers and businesses. Whether the NLRB is a special

agency insulated from this Court’s decision in Loper

1. All parties received timely notice of the filing of this brief.

Pursuant to Rule 37.6, counsel affirms that no counsel for any

party authored this brief in whole or in part and that no person or

entity other than amicus made a monetary contribution to fund

the preparation and submission of this brief.

2

Bright Enterprises v. Raimondo, 603 U.S. 369 (2024)

depends on which circuit answers the question. The D.C.,

Sixth, and Fifth Circuits apply Loper Bright to exercise

independent judgment (at least nominally) in deciding

whether the agency acted within its statutory authority.

But the Fourth, Third, and Ninth Circuits disagree.

There, the traditional deference afforded to the NLRB

survives Loper Bright intact because that deference

predates Chevron. So, while the D.C. Circuit applies the

new standard of review in union cases, the Third Circuit

declares it “an open question” whether Loper Bright

affects the NLRB at all. Here, the Fourth Circuit did not

even mention Loper Bright in the decision below, while the

Sixth Circuit emphasizes its applicability. Thus, in some

regions of the country, the Board is given great deference

when deciding such major questions of great economic

and political significance. In others, courts exercise

independent review in obedience to Loper Bright. The

result is a jumbled assortment of mixed results where the

fate of millions of Americans to bargain (or refrain from

bargaining) rests entirely on where they live.

This national turmoil over the proper level of deference

afforded to the NLRB is now heightened by the emergence

of the even more lenient Cemex standard—a new rule that

makes bargaining orders the default remedy for unfair

labor practices during an election campaign.

Moreover, under the Major Questions Doctrine, the

Board never had authority to issue bargaining orders in

the first place. When the Board orders a remedy that

the statute does not allow, that action is ultra vires and

therefore void ab initio. The plain text of the enabling

legislation is silent or ambiguous (at best) as to whether

3

the Board has the power to issue bargaining orders

as a remedy for unfair labor practices. Certainly, the

enumerated forms of relief interpreted under the doctrine

of ejusdem generis suggest it does not. This Court’s

precedents in Franks, Lorillard, and Gissel declare

the blanket authority simply “too plain for anything

but statement” and cite 29 U.S.C. § 160 (a) and (c) of the

National Labor Relations Act (NLRA) as the statutory

basis for such expansive agency power. But the NLRA

never authorized the Board to issue bargaining orders as

a remedy for violations. The Act authorizes the Board to

fashion specific forms of relief to individuals who were

victims of specific violations and to restrain individual

violators. Notably, reinstatement, back pay, cease and

desist orders, and periodic reports to show compliance

by violators are all enumerated forms of relief in § 160

(c). Bargaining orders are not.

The Board—seeking to maximize its authority—

interpreted the phrase “affirmative action” in § 160 (c)

of the NLRA to give itself the power to issue bargaining

orders nationwide, thus wielding a power of vast economic

and political significance. That provision does not mention

bargaining orders. It states, in relevant part:

If upon the preponderance of the testimony

taken the Board shall be of the opinion that any

person named in the complaint has engaged in

or is engaging in any such unfair labor practice,

then the Board shall state its findings of fact

and shall issue and cause to be served on such

person an order requiring such person to cease

and desist from such unfair labor practice,

and to take such affirmative action including

4

reinstatement of employees with or without

back pay, as will effectuate the policies of this

Act.

29 U.S.C. § 160 (c). The phrase “affirmative action” in that

sentence was soon interpreted to encompass bargaining

orders. In the 1940s, this Court in Lorillard and Franks

upheld the Board’s interpretation of its own statutory

authority during a time when government expansion ran

rampant and many constitutional limits on unions and

union activity had yet to be established. Thus, “affirmative

action” in § 160 (c) became an omnipotent catch-all used

to force an unwilling majority of company employees to

unionize, all to punish the actions of an individual company

representative. This agency-invented remedy comes at

the expense of employees’ freedom of association and selforganization for millions of Americans who never voted

for union representation. Yet, under Franks, bargaining

orders are a necessary evil the Board can dispense at will

to protect union stability and punish bad behavior.

But Congress never said that, explicitly or implicitly.

As the D.C. Circuit recently explained, the NLRA was

enacted to protect employees, not unions. Its goal is to

protect employee choice, not expand union membership.

Indeed, such an expansive statutory interpretation would

require isolating the vague phrase “affirmative action”

from the rest of the text. This Court’s recent decisions

confirm that sweeping agency authority cannot be rooted

in ambiguous language. The phrase “affirmative action”

in the Act is not a blank check to use whatever means

necessary to achieve a stated objective.

Under well-established rules of statutory construction,

a general term like “affirmative action” is limited by

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the specific words around it. So, for example, in a law

mentioning “chickens, cows, donkeys, and other animals,”

the general phrase “other animals” is restricted to farm

animals, not a pet parakeet. The general term should

only be understood to include things of the same kind

or category as those specifically mentioned. Here, an

order that forces businesses to bargain with unions that

lack majority support is not the same kind or category of

relief as what Congress specifically enumerated in the

statute. Nor can the Board’s self-serving interpretation

of the statute be insulated from judicial review. Because

it afforded broad deference to the Board’s statutory

interpretation of an issue on which the statute is silent or

ambiguous, the Fourth Circuit was wrong to ignore Loper

Bright and not exercise independent judgment.

The Petition should be granted to resolve the circuit

split and overturn Lorillard, Franks, and Gissel, which

are plainly inconsistent with this Court’s more recent,

controlling precedent. After all, one ought not add more

boxes to a train that has derailed. This train has tumbled

downhill, and this case presents a vehicle to put that train

back on track.

ARGUMENT

I.

The Petition is an Ideal Vehicle to Resolve the

Circuit Split Affecting Millions of Workers and

Businesses in America.

While the Fourth Circuit did not mention Loper

Bright in the decision below and accorded “due deference”

to the Board “regardless of whether we might have

reached a different conclusion in the first instance,” the

6

D.C. Circuit just did the exact opposite. Compare Garten

Trucking LC v. NLRB, 2026 U.S. App. LEXIS 4796, at *7

(4th Cir. 2026), with Hosp. Menonita de Guayama, Inc.

v. NLRB, 2026 U.S. App. LEXIS 21642 (D.C. Cir. 2026).

Following a vacatur order from this Court to reconsider

its decision to uphold the successor bar specifically in

light of Loper Bright, the D.C. Circuit reasoned it had

an “independent obligation” not to defer to the NLRB’s

interpretation of the scope of its statutory authority. Hosp.

Menonita de Guayama, 2026 U.S. App. LEXIS 21642, at

*2. Reviewing the issue anew “without deference to the

Board,” it concluded “the successor bar is inconsistent with

the Act.” Id. Because the bar was created by the agency

to protect union stability at the expense of employee

choice, the D.C. Circuit reversed course and held the

Board lacked statutory authority to create the bar in the

first place. Id. at 20 (“But the Board has no authority to

favor incumbent unions at the expense of the statutory

protections for employees, because the Act ‘confers rights

only on employees, not on unions.’”) (citing Lechmere, Inc.

v. NLRB, 502 U.S. 527, 532 (1992)).

The Fourth Circuit, meanwhile, ignored Loper

Bright entirely. Instead, it afforded the NLRB “broad

discretion” because it concluded the agency “‘draws on

a fund of knowledge and expertise all its own, and its

choice of remedy must therefore be given special respect

by reviewing courts’” Garten Trucking, 2026 U.S. App.

LEXIS 4796, at *15-16 (quoting NLRB v. Gissel Packing

Co., 395 U.S. 575 (1969)).

But the Fifth and Sixth Circuits have reached the

opposite conclusion. If Garten’s challenge had been filed

there or in Washington, D.C., it would have received a

7

different standard of review, which is why this entrenched

split should be resolved by granting certiorari.

In NLRB v. Starbucks Corp., 159 F.4th 455 (6th Cir.

2025) and United Nat. Foods, Inc. v. NLRB, 138 F.4th

937 (5th Cir. 2025), the sister circuits took seriously this

Court’s mandate in Loper Bright and explicitly cited the

new standard of review requiring independent judgment.

In Starbucks Corp., the Sixth Circuit held the Board did

not have unlimited power to fashion any form of “makewhole relief” it desired and thus exceeded its statutory

authority when it ordered unauthorized relief to remedy

unfair labor practices. 159 F.4th at 479–80 (6th Cir. 2025).

The Sixth Circuit correctly described such a remedy as

“a Carl-Lewis sized leap” from the Board’s statutory

authority in the plain text of § 10 (c). Id.

The court reasoned that “affirmative action” in 29

U.S.C. § 160 (c) “accommodates some forms of relief—

such as reinstatement—while foreclosing others—such

as consequential damages.” Id. at 478. Reinstatement is a

specific kind of relief that is enumerated in the plain text

and therefore “expressly permitted under § 10 (c).” Id. But

the Board cannot interpret the phrase “affirmative action”

to expand its own powers. Such expansion, according to

the Sixth Circuit, would constitute “judicial guesswork

about Congress’s hypothetical intent over statutory text,

which is the definitive expression of Congress’s will.”

Id. (cleaned up). Citing Loper Bright, the Sixth Circuit

arrived at this conclusion by applying independent

judgment in deciding whether the Board acted outside

its statutory authority when issuing this form of “relief”

to punish Starbucks for unfair labor practices. Id. at 479.

Notably, the court opined that independent judicial review

8

in such cases was especially important given that agencies

like the NLRB “have a tendency to swell, not shrink, and

are likely to have an expansive view of their mission.” Id.

(internal citations omitted).

Likewise, the Fifth Circuit in United Nat. Foods, Inc.

v. NLRB (UNFI) also cited Loper Bright’s new mandate,

explaining “whereas previously we could defer to NLRB’s

reasonable interpretation, we must instead, following

Loper Bright, ‘exercise [our] independent judgment in

deciding whether [NLRB] has acted within its statutory

authority.’” 138 F. 4th at 946 (citing Loper Bright, 603

U.S. at 412). Interestingly, the dissent in UNFI did not

think the majority obeyed Loper Bright at all. Instead,

Judge Oldham argued the majority merely paid lip service

to Loper Bright while “recycling the same reasons it

provided two years ago to justify deferring to the Board.”

Id. at 953 (Oldham, J., dissenting). The result is that “the

same judges who might otherwise say ‘we defer to the

agency’ might now be tempted to say ‘the agency’s reading

of the statute is the best and only permissible one.’” Id. at

954. Unless this Court steps in to resolve this confusion,

Judge Oldham’s concern may come to fruition; Loper

Bright may be “underruled” or “narrowed from below”

by inferior courts who continue to delegate judicial power

to administrative agencies despite Chevron’s demise. Id.

But, lip service or not, the Fifth Circuit panel was united

in recognizing that Loper Bright should apply, at least

nominally, to union cases and that it altered the level of

deference given to the NLRB.

In contrast, the Third Circuit declares it “an open

question” whether the NLRB is affected at all. Alaris

Health at Blvd. E. v. NLRB, 123 F.4th 107, 121 (3rd

9

Cir. 2024). It considers the NLRB a standalone agency

insulated from Loper Bright because the “judicial

deference to the Board’s classifications of the ‘terms and

conditions of employment’ under the Act is distinct from

Chevron deference, as the Supreme Court’s decisions

developing that deference to the Board predate Chevron.”

Id. at 121. This “open question” is primed for this Court

to resolve.

Now, the NLRB has adopted the even more lenient

Cemex standard that makes bargaining orders the

default remedy for unfair labor practices. See Cemex

Construction Materials Pacific, LLC, 372 NLRB No.

130 (2023). The Board declared “we will no longer

look to Gissel bargaining orders” because they are

“insufficient” to protect free choice and deter “employer

misbehavior.” Id. at *27. The Board’s latest self-serving

statutory interpretation further expands its power and

has triggered havoc across the country.

In March 2026, the Sixth Circuit invalidated the

Cemex standard as unlawful “rulemaking under the guise

of an adjudication.” Brown-Forman Corp. v. NLRB, 169

F.4th 646, 667 (6th Cir. 2026) (holding “the Cemex Board

exceeded its adjudicatory authority in creating the Cemex

standard for issuing bargaining orders”). The court

reasoned the Board “made it clear that its new standard

was not remedial in nature—contravening the essence

of its adjudicatory authority.” Id. at 666. And because

“deterrent effect on future, hypothetical preelection

violations of the Act,” is not the purpose of the NLRA, it

held that “the Cemex Board created the Cemex standard

as a new rule of general applicability that did not adhere

to the core limitation Congress placed on adjudicatory

10

authority[.]” Id. at 666-67. As a result, Cemex bargaining

orders are unenforceable in certain states.

Not so in the Ninth Circuit, where the traditional

Chevron-like deference to the NLRB remains intact. It

recently upheld a Gissel bargaining order against Cemex

Construction Materials Company, affording “exceedingly

broad” deference to the Board in the “selection of

appropriate remedies.” Int’l Bhd. of Teamsters v. NLRB,

2026 U.S. App. LEXIS 11277, at *22 (9th Cir. 2026). And,

like the Fourth Circuit here, the Ninth Circuit completely

ignored the effect of Loper Bright. This widening circuit

split surrounding bargaining orders is likewise primed

for resolution by this Court.

Only this Court can resolve this confusion on such

a major question of immense economic and political

significance. Moreover, this Court’s recent precedent

suggests the Board never had the authority to issue

bargaining orders in the first place.

II. The Major Questions Doctrine Does Not Authorize

the use of Bargaining Orders and Prohibits the

Board’s Self-Serving Statutory Interpretation.

The Major Questions Doctrine applies where, as here,

the statute is silent or ambiguous on an issue of economic

and political significance. West Virginia v. EPA, 597 U.S.

697 (2022). The plain text of 29 U.S.C. §§ 160 (a) and (c)

shows that Congress never used the words “bargaining

order” as an authorized form of mass relief to punish

individual violators. While some courts have called a

bargaining order equitable relief, its nature is punitive,

not remedial. See, e.g., Koons Ford of Annapolis, Inc. v.

11

NLRB, 1987 U.S. App. LEXIS 18752, *6-7 (4th Cir. 1987)

(noting that a bargaining order is an equitable remedy);

Kerwin v. Trinity Health Grand Haven Hosp., 174 F.4th

942, 954 (6th Cir. 2026) (holding that “affirmative action”

is a “broad grant of equitable power” that authorizes “an

array of remedies” including bargaining orders). But see

Starbucks Corp., 159 F.4th at 478 (holding “affirmative

action” is a limited term and the Board lacks power to

order consequential damages). The enumerated categories

of relief in § 160 (c) suggest Congress intended the

remedies to be targeted to individual forms of equitable

relief, not sweeping agency authority that strips millions

of Americans of their freedom of association in the name

of union stability. See id. (holding that “affirmative action”

in § 160 (c) is limited to some forms of equitable relief like

reinstatement, not all-encompassing legal remedies or any

form of “make-whole” relief).

The decision below relies on NLRB v. Gissel Packing

Co., 395 U.S. 575 (1969) to authorize bargaining orders

without majority support. Gissel declares “[w]e have

long held that the Board . . . has the authority to issue a

bargaining order without first requiring the union to show

that it has been able to maintain its majority status.” Id.

at 610. Gissel relies on three cases to support this “longheld” belief: footnote 16 of NLRB v. Katz, 369 U.S. 736

(1962), Franks Bros. Co. v. NLRB, 321 U.S. 702 (1944),

and NLRB v. P. Lorillard Co., 314 U.S. 512 (1942).

But neither Franks nor Lorillard explains where the

statutory text authorized this specific type of sweeping

power in the first place. Lorillard is a one-paragraph

opinion from 1942 affirming the Board’s decision to issue a

bargaining order. See Lorillard, 314 U.S. at 513. It does not

12

discuss how the Board derived that authority. Footnote 16

in Katz likewise offers no insight into the matter. It merely

opines that “inordinate delay” is “regrettable” but does

not matter and cites to Franks and Lorillard. Katz, 369

U.S. at 748n.16. Nor does it tell us where the statutory

authority came from. Franks, another WWII-era decision,

declares itself to be conclusory by “arguing” that the

agency’s purported power to issue bargaining orders is

self-evident:

That the Board was within its statutory

authority in adopting the remedy which it has

adopted to foreclose the probability of such

frustrations of the Act seems too plain for

anything but statement. See 29 U. S. C. § 160

(a) and (c).

Franks, 321 U.S. at 705 (emphasis added). Under Franks,

this major power that affects millions of workers and

billions of dollars in commerce nationwide is so obvious

it needn’t be explained at all. And yet, this broad grant

of authority is anything but plain. Where does the text

authorize that type of mass remedy? The language in

§§ 160 (a) and (c) does not mention bargaining orders.

So, how did the Board get this authority? And if it is

indeed obvious, shouldn’t we be able to quickly point to

a clear grant of authority in the text that authorizes it?

If Congress took the time to specify certain forms of

individual relief like reinstatement, back pay, and cease

and desist orders, it follows that Congress could have

easily listed “bargaining orders” as well, especially where

the latter form of relief implicates the rights of millions

in the name of punishing the few. But Congress didn’t

do that, explicitly or implicitly. The power emerged from

the ambiguous phrase “affirmative action” in § 160 (c)

13

because it was read into the law, and the Court in Franks,

Lorillard, and Gissel simply deferred to the Board’s

self-serving statutory interpretation. Indeed, in Phelps

Dodge Corp. v. NLRB, 313 U.S. 177 (1941), the Court left

the matter of ambiguous statutory interpretation entirely

to the agency’s discretion. 313 U.S. at 196 (“All we are

entitled to ask is that the statute speak through the Board

where the statute does not speak for itself.”). Such broad

deference cannot be reconciled with the Major Questions

Doctrine.

Those days are gone. The Court’s current textual

approach prohibits broad deference to an agency’s

aggrandizing interpretations of its ow n enabling

legislation. Under the Major Questions Doctrine,

Congress must give agencies like the NLRB clear

authority to act on decisions of great magnitude. West

Virginia, 597 U.S. at 735. Where the agency authority

in question involves a “major question” of “economic and

political significance,” this Court’s precedent provides

“a reason to hesitate before concluding that Congress

meant to confer such authority.” Id. at 721. Indeed, such

important delegations affecting millions of people cannot

be read into ambiguous language but must be delegated

clearly and expressly in the authorizing text. Id. at 721–23

(explaining that the separation of powers and “a practical

understanding of legislative intent” prohibit “read[ing]

into ambiguous statutory text” delegations implicating

such sweeping power). Today, an “agency must point to

clear congressional authorization for the power it claims.”

Id. (internal quotations omitted).

The NLRB is no exception. The power to control

wages, terms, and conditions of employment for Americans

14

nationwide is indeed a significant power that affects

billions of dollars in commerce. See Biden v. Nebraska, 600

U.S. 477 (2023) (applying the Major Questions Doctrine

to invalidate the mass debt cancellation program); King

v. Burwell, 576 U.S. 473, 517 (2015) (applying the Major

Questions Doctrine to reject the IRS’s interpretation of a

healthcare statute because the provision at issue affects

“billions of dollars in spending each year” and “the price

of health insurance for millions of people.”). Because the

agency’s interpretation in King was a question of “deep

economic and political significance,” the Court “would not

assume that Congress entrusted that task to an agency

without a clear statement to that effect.” Biden, 600 U.S.

at 506 (citing King, 576 U.S. at 473). Similarly, the right

to bargain (or be free from bargaining) is an essential

component of Americans’ freedom of choice and right of

association for millions of people.

Starbucks v. McKinney, 602 U.S. 339 (2024) confirmed

that the NLRB is not a standalone agency exempt from

rules that govern all others. As this Court pointed out in

McKinney—issued the same month as Loper Bright—the

Board would never lose “if courts deferentially ask only

whether the Board offered a minimally plausible legal

theory, while ignoring conflicting law or facts.” McKinney,

602 U.S. at 350. There, the Court explained that setting

a lower bar for the NLRB would be “rendering the court

more a spectator than a referee when it comes to matters

of equity.” Id. And yet, some circuits still treat the NLRB

differently because Franks, Lorillard, and Gissel point to

§ 160 (c) as silently authorizing sweeping powers because

of the phrase “affirmative action.”

15

This Court’s recent decisions confirm that the phrase

“affirmative action” is not a permissible “catch-all”

delegation. However noble the objective, that phrase

cannot be interpreted as a blank check to the agency. Nor

is there any indication in the plain text that Congress even

hypothetically intended the phrase “affirmative action”

to delegate to the Board such sweeping power to issue

bargaining orders. 2 In fact, “it is a fundamental canon of

statutory construction that the words of a statute must

be read in their context and with a view to their place in

the overall statutory scheme.” West Virginia, 597 U.S.

at 721. So, the ambiguous phrase “affirmative action”

cannot be viewed in a vacuum. Under ejusdem generis, a

general term is understood to include only things of the

same kind or category as those specifically mentioned. So,

in a law mentioning “chickens, cows, donkeys, and other

animals,” the general phrase “other animals” is restricted

to farm animals, not house pets. Here, the general term

“affirmative action” is informed by the specific words

around it: reinstatement, backpay, and cease-and-desist

orders. 29 U.S.C. § 160 (c). Those enumerated forms of

relief are equitable remedies directed at individuals

meant to restore the status quo. See Phelps Dodge Corp.,

313 U.S. at 188 (holding that “affirmative action” in § 10 (c)

of the Act authorized the Board to order reinstatement for

purposes of “undoing the discrimination” that occurred).

So, a barista who was fired should be reinstated. A factory

worker who lost wages should be awarded backpay. A

wrongdoer who committed unfair labor practices should

be ordered to cease-and-desist and submit periodic

2. Even if, arguendo, Congress intended to give the NLRB

such a blank check, that delegation would be prohibited under the

Non-Delegation Doctrine.

16

reports verifying compliance. These remedies are aimed

at one thing: preserving the ability of employees to decide,

absent outside pressure, whether they want to belong to

a union.

A bargaining order is not the same kind or category of

relief. It is punitive in nature. A bargaining order forces

collective bargaining (even without majority support)

all in the name of punishing wrongdoers and deterring

future misconduct. That is not remedial because it does

not restore the status quo. It alters the status quo in

favor of union stability and strips employee choice in the

process. Rather than protecting employees, a bargaining

order tips the scales in favor of the union at the expense

of employee choice. That defeats the purpose of the

Act. The NLRA was enacted to protect employees, not

unions. Its goal is to secure employee choice, not expand

union membership. Hosp. Menonita de Guayama, 2026

U.S. App. LEXIS 21642, at *20 (“But the Board has no

authority to favor incumbent unions at the expense of

the statutory protections for employees, because the Act

‘confers rights only on employees, not on unions.’”) (citing

Lechmere, Inc. v. NLRB, 502 U.S. 527, 532 (1992)). A

bargaining order thus violates both the spirit and the

letter of the law.

The rationale offered in Franks, Lorillard, Gissel, and

subsequent progeny for this well-camouflaged authority

to issue bargaining orders is that it must be authorized

to punish bad behavior and deter future misconduct.

Franks, 321 U.S. at 704 (explaining employers cannot be

permitted to “profit from their own wrongful refusal to

bargain”). The overarching fear—understandably—was

that, without this authority, the employer would profit

from its misconduct and indefinitely delay compliance

17

with the Act. Id. at 705; Lorillard, 314 U.S. at 513; Gissel,

395 U.S. at 610. Every case identifies no clear statutory

authorization and offers the same explanation for why the

power must be read into the vague language of the Act.

But this rationa le suggests that int ell igent ,

hardworking Americans—our factory workers, baristas,

waiters, servers, truck drivers, men and women on the

assembly line—are weak-minded, impressionable people

unable to think or speak for themselves when casting

votes in an election. Under this paternalistic approach,

they need an unelected Board to speak for them. Such

rationale runs contrary to the foundational principles of

this country, of which the right of association and freedom

of choice are paramount.

Neither the Board nor the courts can bestow upon

the Board powers Congress did not delegate. U.S. Const.,

Art I, § 1; Whitman v. American Trucking Ass’ns, Inc.,

531 U.S. 457, 487 (2001) (Thomas, J., concurring) (“All

legislative Powers herein granted shall be vested in a

Congress.”). And if the Board ordered a remedy the

statute did not allow, that agency action was ultra vires

and therefore void ab initio. Such an encroachment

would violate the separation of powers, which allows

only Congress—not agencies or courts—to w ield

legislative power. The Federalist No. 51, at 321. (James

Madison) (Clinton Rossiter, ed., 1961); Dept. of Transp.

v. Ass’n of Am. R.R., 575 U.S. 43, 68 (2015) (Thomas, J.,

concurring) (“When the Government is called upon to

perform a function that requires an exercise of legislative,

executive, or judicial power, only the vested recipient of

that power can perform it.”). The separation of powers

was so vital to the republic that Madison argued “this

18

structure represented the ‘great security’ for liberty

in the Constitution.” Perez v. Mortg. Bankers Ass’n,

575 U.S. 92, 118 (2015) (Thomas, J., concurring) (citing

The Federalist No. 51, p. 321 (C. Rossiter ed. 1961)). As

Montesquieu warned, “power should be a check to power”

lest the legislature “soon destroy all the other powers.” Id.

at 117 (citing Montesquieu, Spirit of the Laws bk. XI, ch.

6, pp. 150–57 (O. Piest ed., T. Nugent transl. 1949)). Thus,

the Framers intentionally prohibited one branch from

usurping power from another. See 1 William Blackstone,

Commentaries on the Laws of England 150–51 (William

S. Hein & Co., Inc. 1992) (1765); John Locke, The Second

Treatise of Government 82 (Thomas P. Peardon ed.,

Prentice-Hall, Inc. 1997) (1690).

Here, there is no clear or express grant of authority to

the Board authorizing the use of bargaining orders in 29

U.S.C. § 160 (a) or (c). By issuing these orders, the NLRB

is effectively wielding a major power of immense economic

and political significance without explicit authorization

from Congress. See Learning Res., Inc., v. Trump, 607

U.S. 229, 248 (2026) (“It is in precisely such cases that

we should be alert to claims that sweeping delegations—

particularly delegations of core congressional powers—

’lurk[ ]’ in ‘ambiguous statutory text.’”). This immense

power was “read into” the statute by the Board and

then adopted in Lorillard and Franks during a difficult

period for this country when the world was at war and the

separation of powers took a back seat. The broad level of

deference afforded to the Board in Phelps Dodge Corp.,

Lorillard, Franks, and Gissel cannot be reconciled with

today’s textual approach that requires clear Congressional

authorization for such sweeping powers. However wellintentioned, “there is no major questions exception to

the major questions doctrine.” Learning Res., Inc., 607

19

U.S. at 248. Franks, Lorillard, and Gissel are plainly at

odds with recent precedent from this Court reminding

us that “extraordinary grants of regulatory authority

are rarely accomplished through ‘modest words,’ ‘vague

terms,’ or ‘subtle devices.’” West Virginia, 597 U.S. at

723 (citing Whitman v. Am. Trucking Ass’ns, 531 U.S.

457, 468 (2001)). Today, this Court “presume[s] that

Congress intends to make major policy decisions itself, not

leave those decisions to agencies.” Id. (internal citations

omitted). As it did in West Virginia, Learning Res., Inc.,

Biden, and King, the Court should likewise apply the

Major Questions Doctrine to the NLRA to rein in the

NLRB’s power to issue bargaining orders under either

Gissel or Cemex because there is no clear statement from

Congress to that effect.

If Congress wanted to give the Board the authority

to issue bargaining orders without majority support

to punish bad behavior and deter future misconduct,

Congress would have said so. It didn’t. The Board read

that power into the Act—and in so doing violated the

Major Questions Doctrine.

20

CONCLUSION

The Court should grant the Petition to resolve the

circuit split and overturn Lorillard, Franks, and Gissel,

which are plainly inconsistent with this Court’s more

recent, controlling precedent.

Respectfully submitted,

Ilya Shapiro

Trevor Burrus

Manhattan Institute

52 Vanderbilt Avenue

New York, NY 10017

August 2026

Mia Yugo

Counsel of Record

Christopher E. Collins

Yugo Collins, PLLC

21 Franklin Road SW

Roanoke, VA 24011

(540) 855-4791

mia@yugocollins.com