Dive Brief:
- The National Labor Relations Board may not revive an effort to collect $100,000 in back pay from a Louisiana plumbing company that stalled for nearly a decade, a divided three-judge panel of the 5th U.S. Circuit Court of Appeals held May 23.
- NLRB originally moved to enforce an administrative law judge’s order against AllService Plumbing and Maintenance in 2013, but a 2014 U.S. Supreme Court decision effectively rendered the board without a quorum and unable to affirm the judge’s order. The finding against AllService sat on NLRB’s docket “gathering dust,” the 5th Circuit said, until NLRB issued a Notice to Show Cause to AllService in 2022 seeking to revisit the matter.
- Both sides petitioned the 5th Circuit for review with NLRB asking the court to permit summary enforcement of its 2013 order. A 2-1 majority of the 5th Circuit sided with AllService, holding that NLRB failed to carry its burden to show that enforcement would be equitable.
Dive Insight:
The majority emphasized the length of time that passed between NLRB’s enforcement attempts, noting that AllService faced “two catastrophic floods in intervening years.” Such factors constitute a set of extraordinary circumstances that allow AllService to be exempted from statutory provisions requiring employers to timely object to NLRB orders, the court said.
Additionally, the delay between the initial order and the 2022 order “was caused exclusively by the Board’s negligence,” the 5th Circuit said, noting that NLRB had processed other cases affected by the 2014 Supreme Court decision but left the AllService case dormant. The company “had no reason to think this long-dead case was coming back to life,” the court continued, so typical statutory requirements around timely objection should not apply.
“Here, the Board’s unclean hands require denial of its application for injunctive relief, regardless of what AllService did or did not exhaust in 2022,” the 5th Circuit said.
In a dissenting opinion, Judge James Dennis wrote that while the delay and subsequent developments “may be ‘extraordinary’ in common parlance,” they were not extraordinary within the meaning with the statute because they did not interfere with AllService’s ability to timely present legal arguments to NLRB.
“Here, AllService had the opportunity to object to the ALJ’s recommendation with the Board at least twice, first in 2013 when the ALJ initially issued its recommendation and again in 2022 when the Board issued its show cause order,” Dennis said. “Both times, AllService failed to contest the findings supporting the ALJ’s recommendation or provide a legal argument against adopting that recommendation.”
Dennis said he would have granted NLRB’s enforcement petition and would have denied AllService’s petition for review.
