Third Circuit Rebukes NLRB, Questions its Authority

The Third Circuit Court of Appeals overturned an NLRB decision on union decertification and, in doing so, questioned the agency’s authority to limit review of its decisions. 

Why it matters: As the latest in a string of reversals of Board decisions, the Court of Appeals continued as a safeguard against the NLRB’s ambitious policy agenda. 

The bottom line: The decision is the latest finger in the agency’s eye as it faces assaults on its authority from a variety of sources. 

Background: The case, New Concepts for Living, Inc. v. NLRB, involves an employer’s decision to withdraw recognition following a petition by employees to decertify the union. 

• Employees took issue with the union’s failure to make good faith efforts to secure a bargaining agreement and its lack of communication with employees. 
  
  
• The employer eventually withdrew recognition of the union citing the fact that most employees had stopped paying dues and supported the union’s ouster, evidenced by a decertification petition and employer-conducted poll. 
  
  
• The union filed an unfair labor practice charge with the NLRB, alleging that the employer had unlawfully coerced employees into voting it out by distributing a memo outlining union decertification procedures and holding meetings to discuss the union bargaining progress and lack of support among employees. 
  
  
• Even though an administrative law judge found the union’s allegations meritless, the Board reversed, holding that the employer had unlawfully coerced its employees and withdrawn recognition. 

Third Circuit decision: A Third Circuit panel reversed the Board’s decision, citing an abundance of evidence that the employees had independently lost faith in the union over a two-year period and supported its ouster. “As the [administrative law judge] concluded, [General Counsel Abruzzo’s] position ignores the fundamental truth underlying this case, that it was the union’s own absence over the span of multiple years that ultimately led to its loss of support,” the court said. 

NLRB authority questioned: As if the reversal itself weren’t enough of a rebuke, one of the circuit judges rejected the Board’s argument that the Third Circuit could not review the case. Specifically, the judge questioned an NLRB regulation that limits which issues are available for review when they were not properly brought up before the Board initially. 

Board power under assault: The court’s reversal of the Board’s decision is itself notable and is the latest in a string of courts of appeal reversals that serve as a check on the Board’s more radical decisions. By also separately questioning the Board’s legal authority, the decision joins a growing chorus pushing to rein in the Board’s powers – the Board is currently facing multiple lawsuits challenging its constitutionality, including one currently pending before the Supreme Court. As the legal threats continue to mount, the Board’s ambitious policy agenda may be in jeopardy.