Obama Board Asks Obama Judges to Keep Workers in Dark

NLRB asks for rare court maneuver to overturn precedent

April 30, 2015

A top federal labor arbiter is asking the D.C. Circuit Court to overrule 20 years of legal precedent via a rarely used procedure that would likely benefit labor unions.

The National Labor Relations Board overturned more than two decades of legal precedent in the circuit when it ruled in September 2014 that the United Food and Commercial Workers union (UFCW) acted legally when it did not adequately inform a grocer of her rights to opt out of the union.

The Board acknowledged that it was not adhering to traditional precedent that has guided the application of Beck rights, which are named after the Supreme Court decision that allowed workers to refuse to pay for union political activities. On April 17, the agency filed an en banc petition to the D.C. Circuit asking all 11 active judges on the circuit to re-hear the case that set the precedent.

"Reconsideration of Abrams and Penrod is warranted because of the exceptional importance and recurring nature of this issue, which extends beyond the private litigants in this case, and because both panel majorities erred," the agency said in its filing.

The National Right to Work Legal Defense Fund, which helped represent the grocer, said the tactic is worrisome.

Normal circuit court proceedings appear before a three-judge panel. The D.C. Circuit bypassed such a panel in favor of en banc hearings just nine times between 2002 and 2012.

NRTW lawyer Glenn Taubman told the Washington Free Beacon the NLRB is playing the odds.

There are 17 judges on the D.C. circuit, 11 of whom are "active" justices and six of whom are "senior" justices. Typically, cases at the circuit level are heard by a three-judge panel drawn from both the senior and junior pools. However, an en banc hearing excludes the senior justices.

Of the 11 active circuit judges, seven were appointed by Democrats, including three judges appointed after former Senate Majority Leader Harry Reid pushed through the nuclear option to approve Obama’s judicial appointments.

"[NLRB General Counsel Richard Griffin] wouldn’t dream of doing this if it wasn’t for the Reid court packing," Taubman said, adding that it represented "an extraordinary" step for a federal agency to take.

The circuit court requires a majority of the eleven judges to grant en banc and re-hear the case. Aaron Solem, another attorney at NRTW, said the court’s decision could affect workers across the country.

If the D.C. circuit upholds the NLRB’s legal reasoning, the agency will no longer be able to prosecute unions for violating the rights of employees even if other circuit courts observe precedent. That is because the D.C.-based NLRB can order local agencies and prosecutors from investigating unions for similar violations of Beck rights.

"The union is playing hide the ball to keep employees in the dark, and the board is letting them," Solem said.

The court is expected to make a decision on the en banc request later this year.

Published under: NLRB