In NLRB v. AllService Plumbing & Maintenance, Inc., a divided Fifth Circuit panel held that the NLRB could not revive a 2013 order that the Board had previously abandoned.

The NLRB’s underlying complaint alleged, inter alia, that the defendant had laid off several employees due to anti-union animus.  The NLRB adopted an order that largely agreed with the complaint’s allegations.  Then, the Board asked the Fifth Circuit for permission to enforce its order.  While that request was pending, the Supreme Court held that the majority of the NLRB’s then-sitting members had not been validly appointed.  See NLRB v. Noel Canning, 573 U.S. 513 (2014).  So, the NLRB moved to dismiss its enforcement petition—and the 2013 order sat untouched for eight years.

That changed in 2022.  The NLRB wanted to re-adopt its 2013 order, blaming its delay on an administrative oversight.  The defendant protested that re-adopting the order would be unfair because, in the intervening period, the defendant had suffered from two floods—destroying its records and depleting its money.  The majority of the Fifth Circuit panel agreed with the defendant.

In an opinion written by Judge Oldham, the majority concluded that “the Board failed to carry its burden to prove that enforcement would be equitable.”  The NLRB, unlike its peer agencies, does not have the authority to issue self-executing orders.  What is more, the majority reasoned that the National Labor Relations Act requires courts to use their “equitable powers  .   .   .  to enforce, or modify, or decline to enforce the Board’s decisions.”  Equity prohibited the Board from “start[ing] a new enforcement proceeding after sleeping on the case for almost a decade.”  And even if the defendant had “failed to exhaust its prejudice argument,” that failure would have been excusable due to “extraordinary circumstances”—namely, “the Board’s unclean hands” in causing the delay. 

Judge Dennis dissented.  In his view, the majority’s equity-based holding was not supported by precedent.  And the majority reached its decision, Judge Dennis opined,  despite “the employer’s failure to preserve or exhaust its objections” and “the complexities of Congress’s instruction.”

Mikaela Milligan (née Schulz) is an associate at a law firm in Washington, D.C.