Amusing Legal Problem Caused by Constitutional Challenges to NLRB
FindHelp cannot decertify its union.
Yesterday, Region 16 of the NLRB rejected a petition to decertify the union representing workers at a company called Aunt Bertha, more commonly known as FindHelp. The Region’s decision is fairly standard as far as these things go: there are pending unfair labor practice (“ULP”) charges against FindHelp that taint the decertification petition and require that it be dismissed until a sufficient amount of time has elapsed since the ULP charges have been processed and remedied (Rieth-Riley and Master Slack).
But this standard decision has created a funny problem. Earlier this year, FindHelp went into the Northern District of Texas and got Republican judge Mark Pittman to enjoin the NLRB from processing the pending ULP charges against the company on the theory that doing so would irreparably harm FindHelp by subjecting the company to an administrative process involving administrative law judges that are too difficult to fire.
When you put these two decisions together, what you get is:
The NLRB saying the FindHelp union cannot be decertified until the unfair labor practice charges against the company are processed and remedied.
The federal judiciary saying that the NLRB cannot process the unfair labor practice charges against the company.
Thus, it is, for the time being, impossible for the FindHelp union to be decertified. Until these constitutional challenges have made their way to the Supreme Court, the processing of ULP charges against companies in Texas, Louisiana and Mississippi is going to be enjoined by federal district courts in the Fifth Circuit. And for as long as the processing of these ULP charges is enjoined, decertification petitions filed against unions that represent companies with certain kinds of pending ULP charges against them will be dismissed.
This is the first problem of this sort I have seen since Fifth Circuit district court judges started enjoining ULP charges earlier this year. But there are similar kinds of problems that could conceivably occur.
For example, if an employer in Texas were to file a lawsuit against an employee that is subject to Garmon preemption, the way this would normally work is that the judge would dismiss the case until the NLRB has had a chance to determine whether the underlying conduct in the case is protected by Section 7 of the NLRA or prohibited by Section 8 of the NLRA. If the NLRB decides that the conduct does not implicate Section 7 or Section 8, then the employer is permitted to resume their lawsuit. But if the NLRB is unable to process ULP charges because the Fifth Circuit is enjoining the agency from doing so, then it cannot ever decide whether the conduct in question implicates Section 7 or Section 8, meaning that the lawsuit, which very well could be meritorious, can never be resumed.
Aside from the comedy of all this, these scenarios illustrate how unwise it is, in general, for the judiciary to adopt exotic constitutional theories in order to knock down established laws and administrative systems. A legislature could consider all of these various interactions and reform the law in a way that addresses them. But the blunt instrument of declaring things unconstitutional can pull on threads that unravel a much larger edifice than judges realize.