NLRB’s in-house tribunal undermines fairness and rule of law

David Wulf calls himself a lapsed lawyer, going from law school straight to a career in film production more than 15 years ago. He has since built an impressive filmography, with 42 releases since 2010 and at least three more in the works. His projects range from TV movies to Netflix to the Big Screen, and feature some of Hollywood’s biggest names.

Today, however, he’s mired in a legal battle against the National Labor Relations Board (NLRB) and a bogus tribunal within the agency’s own walls, under its own rules, and before its own employees.

As a dedicated producer, David takes pride in every project, especially in his home state of Utah, where his productions employ hundreds of Utahns and where he has cultivated talented cast and crew members whose teamwork he can count on from a film’s start to finish.

However, in June 2021, on the very first day of filming, David was blindsided when union organizers showed up in Salt Lake City and organized a strike by the film’s driving crew—a tactic intended to interfere with filming and apply pressure on filmmakers.

David follows general film industry practice and incorporates each production as a separate business entity. He created 3484, Inc. and 3486, Inc. for two films. The union initially targeted the 3484 production but abandoned the idea after learning that transportation for that production was stationary and the film was essentially completed—meaning that the union lost the leverage it needed. The union pivoted to the 3486 project just two days before filming was set to begin.

David has worked with unionized crews in the past and is not opposed to unions, but the union’s last-minute demands—over a weekend and on the first day of filming—left him virtually no time to negotiate. On the Saturday evening before filming, while David and his company were busy preparing, the union filed “unfair labor practices” charges with the NLRB, accusing the company of interrogating employees about union activities and threatening to close down production.

On Sunday morning—the first day of filming—union representatives arrived at the filming location and unionized 3486’s commercial drivers. All nine voted to strike and organized an immediate strike. The commercial drivers didn’t just walk off the job. They also drove equipment trucks away from the filming site to the parking lot of the hotel where the drivers were staying—even though the trucks and equipment belonged to David or were being leased by David for the production. The drivers later picketed filming sites—on private property—and disrupted production.

To prosecute these allegations, the NLRB doesn’t even have to go beyond its own walls. Instead, the agency’s general counsel filed its case in-house, applying the NLRB’s own rules and held a hearing in front of an NLRB-employed administrative law judge (ALJ). Any appeal of the ALJ’s decision goes to the NLRB itself.

It’s no surprise that the ALJ in David’s case merely glided through a sham process of the agency’s own making and agreed with the accusations. Never mind that at the time of David’s hearing, both films were finished, so 3484 and 3486 were no longer in operation and neither had any assets beyond a little bit of cash.

When David appealed, the NLRB not only affirmed the ALJ’s decision; it also tacked on a compensatory-damage award—exercising a power the NLRB only first “discovered” it had in 2022, almost 90 years after the National Labor Relations Act’s enactment.

The Constitution guarantees basic principles of fairness, including the right to a fair trial before an impartial judge and jury. This guarantee requires a trial in a real court of law, not an in-house proceeding overseen by executive branch officials who act as prosecutor, judge, jury, and appellate tribunal.

Labor disputes are no exception and should be treated like any other legal dispute, not in an agency tribunal where the normal fixed rules of due process are not guaranteed. Nor can the NLRB claim authority to add compensatory damages and take further advantage of these disputes just to expand its own power.

David is now fighting back with free representation from Pacific Legal Foundation. His federal lawsuit challenges the NLRB’s decision and its sham court that stripped his right to a fair trial.