Tuesday, October 10, 2006
As I've discussed previously, the NLRB's delay can limit its ability to remedy unfair labor practices. Delay doesn't always affect remedies, however, even when the time elapsed is extreme. In a recent case (Human Development Ass'n, 348 N.L.R.B. No. 35 (2006)), the NLRB Regional Office took over 13 years to issue a damage specification after court enforcement of a Section 8(a)(2) unfair labor practice finding against the employer (the employer unlawfully recognized a union without majority support and enforced a union security clause and dues check-off provision; the damages resulted from the improper deduction of dues). The NLRB, citing established precedent, rejected the employer's argument that the doctrine of laches precluded the damage award.
The key difference between this case and others where delay is more of an issue, is that the latter cases typically involve affirmative bargaining orders. Many courts, particularly the D.C. Circuit, do not favor such orders and excessive Board delay will often be cited as a reason to deny enforcement. One can dispute whether delay should matter as much as it does, but the fact remains that the NLRB still takes an inordinate amount of time to process certain cases (note also the years of delay involved with the high-profile "Kentucky River" cases--a delay caused in part by the NLRB frequently lacking all 5 members). This delay does a real disservice to employees and the NLRA itself. At times the NLRB has made strong efforts to reduce delay, with some success. It's looking like that time has come again.