NLRB Can Impart Powers to Directors, Court Says

     (CN) – The general counsel of the National Labor Relations Board can file for temporary injunctions against an employer without the board’s approval of the petition, the 9th Circuit ruled.




     The ruling stems from a series of labor disputes at the Pacific Beach Hotel in Waikiki, Hawaii. Problems began in 2002, when a representation election was set aside because the NLRB found that the hotel had “engaged in objectionable conduct by coercively interrogating employees and maintaining an overly broad no-solicitation policy.” In a second election, despite a finding of more objectionable conduct, the union was certified by a one-vote margin.
     Bargaining between the hotel and union was unsuccessful. The hotel insisted on contractual provisions giving the hotel authority to unilaterally control wages, work schedules and firing decisions, as well as the creation of a complaint-adjudication process that placed the general manager as the final judge.
     The union considered the provisions so outrageous that it accused the hotel of failing to bargain in good faith and filed complaints with the National Labor Relations Board.
     In 2007, the hotel withdrew recognition of the union, alleging that it had received signatures from a majority of bargaining-unit employees on a petition stating that the employees did not desire union representation. Several employees were fired, and the hotel began granting wage adjustments and changing work schedules without bargaining.
     NLRB Regional Director Joseph Frankl sought an injunction against the hotel’s actions while board review was pending. The hotel challenged the petition, arguing that the National Labor Relations Act requires the board to approve petitions individually before granting temporary injunctive relief.
     U.S. District Judge J. Michael Seabright in Hawaii sided with the board and granted the injunction. The hotel appealed.
     The Honolulu-based appellate panel affirmed the Seabright’s ruling, but spilled almost 50 pages of ink debating whether the petition had been properly filed.
     The NLRB can delegate authority to file injunctive petitions, the panel unanimously found.
     “We regard it unlikely that Congress intended a district court’s jurisdiction to depend on the backstage subtleties of how a facially proper petition came to be before it, especially as both the court and the respondent in [NLRA] proceedings will often have no reason to suspect that a petition was not properly authorized,” Judge Marsha Berzon wrote for the court.
     The practice is intended to counteract the relatively slow procedure of NLRB hearings and appeals, during which time employers may be able to accomplish unlawful objectives before being placed under any restraint.
     “The agency’s longstanding practice of having the General Counsel, and not the Board, exercise final authority in approving petitions for enforcement … is strongly supportive of that practice’s validity,” Berzon explained.
     “To conclude that the General Counsel could not exercise such authority would be to hold decades of unchallenged agency practice unlawful – a practice, moreover, in which courts have acquiesced thousands of times over by granting petitions for enforcement,” she added.
     The ruling brings the court in line with the 4th, 5th and 8th Circuits.

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