NLRB Interim Order Not Subject to Court Review

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By Kevin McGowan

July 8 — A National Labor Relations Board order resolving a dispute between rival unions over whose members should perform particular work isn't a final agency order a federal court can review, the U.S. Court of Appeals for the Ninth Circuit ruled ( Pac. Mar. Ass'n v. NLRB, 9th Cir., No. 13-35818, 7/8/16).

Employers and other interested parties generally must await an NLRB final decision to obtain judicial review of a board interlocutory order on which union should perform disputed work.

A federal district court in Oregon had vacated an NLRB order under Section 10(k) of the National Labor Relations Act that said members of an International Brotherhood of Electrical Workers local rather than International Longshore and Warehouse Union members should handle refrigerated cargo containers at the Port of Portland.

The Pacific Maritime Association, a multiemployer group that has labor agreements with the longshoremen's union, said the district court properly applied a U.S. Supreme Court decision that creates an exception to the general rule that courts can't review Section 10(k) orders.

But the Ninth Circuit said in its July 8 decision that the exception doesn't apply because the PMA could intervene in a pending NLRB unfair labor practice proceeding or challenge the NLRB's ultimate unfair labor practice decision in a federal appeals court.

The district court therefore erred in reviewing the Section 10(k) order, the Ninth Circuit said.

Exception at Issue

The Supreme Court in Leedom v. Kyne, 358 U.S. 184, 43 LRRM 2222 (1958) created an exception to the final order requirement if a party challenging a Section 10(k) order shows the NLRB exceeded its authority and the party would be “wholly deprived” of a means to vindicate its statutory rights if a court couldn't review the order.

The PMA argued Leedom applies because the NLRB exceeded its authority in issuing the 10(k) order and the association wasn't a party to an unfair labor practice proceeding involving one of its employer-members and the IBEW local.

The NLRB probably exceeded its statutory authority by issuing the 10(k) order because the IBEW members are public employees not covered by the NLRA, the Ninth Circuit said.

Alternative Paths Exist

But the PMA can't satisfy Leedom's second prong because it has alternative ways to challenge the board's determination, Judge Marsha S. Berzon wrote.

The PMA could seek to intervene in the ongoing unfair labor practice proceeding, the court said.

The PMA argued that since the board denied its bid to intervene in the Section 10(k) proceeding, it probably couldn't succeed in joining the ULP proceeding either.

But “significant differences” exist between a 10(k) proceeding and an unfair labor practice proceeding, the court said. The NLRB also told the district court it wouldn't oppose the PMA's intervention in the unfair labor practice proceeding, the court said.

The NLRB can reconsider in an unfair labor practice proceeding issues it previously decided in a Section 10(k) hearing, the court said.

“We therefore conclude that intervention in the unfair labor practice proceeding presented PMA with a viable alternative path to seeking review of the Board's §10(k) decision,” Berzon wrote.

‘Meaningful' Means to Seek Review

Even absent intervention, the unfair labor practice proceeding gave the PMA a “meaningful and adequate means” to seek judicial review, the Ninth Circuit said.

NLRA Section 10(f) allows any “person aggrieved” by a final NLRB order to seek judicial review, the court said.

The PMA therefore could ask a federal appeals court to review the NLRB's decision even if it were denied intervention, the court said.

Judges Raymond C. Fisher and Paul J. Watford joined in the decision.

NLRB attorneys in Washington represented the board. Morgan Lewis & Bockius LLP represented the Pacific Maritime Association.

To contact the reporter on this story: Kevin McGowan in Washington at

To contact the editor responsible for this story: Susan J. McGolrick at

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