Tuesday, April 29, 2008

A Lesson in How Not To Challenge A Board Bargaining Order

Goya_2 NLRB attempts to issue affirmative bargaining orders are often resisted by courts (see D.C. Circuit), so employers almost automatically challenge such orders.  Employers have numerous grounds for such challenges, which unfortunately often involves significant delay by the Board (it's a cruel twist that employees must bear the burden of delay caused by the Board, frequently with help from an employer raising a multitude of issues).  The Eleventh Circuit, however, recently rejected an employer's challenge in a case that illustrates what not to do if you're the employer.  In NLRB v. Goya Foods (11th Cir. April 25, 2008), the court upheld the Board's affirmative bargaining order against Goya Foods, which had committed numerous unfair labor practices following UNITE-HERE's certification at one of its facilities.

An ALJ had issued its recommendation in March 2001, but the Board's decision took until September 2006--over 5 1/2 years later.  Not surprisingly, Goya argued that conditions had changed in the meantime and that a bargaining order was no longer appropriate.  One problem though: 

Notwithstanding the extensive delay between the ALJ decision . . . and the Board’s decision . . . , Goya filed nothing with the Board to indicate that significant changes had occurred during this passage of time. Thus, at the time of the Board’s decision challenged by Goya, the record before the Board revealed no changed circumstances. Promptly after receiving the Board’s decision, Goya filed a motion for reconsideration and to reopen the record for consideration of certain listed changed circumstances, including employee turnover. In the most peculiar aspect of the posture of this case, Goya’s brief on appeal fails to fairly raise a challenge to the Board’s denial of its motion for reconsideration. . . .

As I frequently tell my students, administrative law and its procedures often play a crucial role in litigation.  This is yet another example of why.



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