On July 8, 2016, the Ninth Circuit Court of Appeals (the “Ninth Circuit”) held that a National Labor Relations Board (the “Board”) § 10(k) interim order resolving a dispute between rival unions over which union’s members should perform certain work is not a final agency order subject to federal court review. Pac. Maritime Assoc. v. NLRB, No. 13-35818 (9th Cir. July 8, 2016). In doing so, the Ninth Circuit reasoned that a multi-employer association (the “Association”) had alternative means of challenging the Board’s § 10(k) decision, such that the Leedom v. Kyne, 358 U.S. 184 (1958) exception to the finality requirement for federal court jurisdiction did not apply. The Ninth Circuit also rejected the Association’s argument that the Board’s decision was invalid for lack of a quorum under NLRB v. Noel Canning, 134 S. Ct. 2550 (2014).
The case arose out of a longstanding jurisdictional dispute between two unions over which union’s members should perform “reefer work” at a Port of Portland (the “Port”) terminal. Since 1974, the Port, which is a public entity, employed members of one union (“Union A”) to perform work known as “reefer work.” During the mid-2000s, a different union (“Union B”), which represented other workers at the terminal, began to assert that its members should perform the “reefer work.” In 2011, a company (the “Company”) entered into a lease with the Port to take over cargo handling operations at the terminal with the understanding that Union A’s members would continue performing the “reefer work.” After entering into the lease, however, the Company joined the Association and became bound by the Association’s multi-employer collective bargaining agreement, which required Union B’s members to perform the “reefer work.” In response to Union A threatening to picket the Company if it assigned the “reefer work” to Union B’s members, the Company filed an unfair labor practice charge against Union A with the Board.
The Board scheduled a hearing under § 10(k) and, on the first day of the hearing, the Association moved to intervene and to quash the notice of hearing. The Board denied both motions. The Board subsequently issued an interim decision under § 10(k) awarding the “reefer work” to Union A. The Association filed an action in federal district court seeking immediate judicial review of the Board’s § 10(k) order and argued that the district court had jurisdiction over the Board’s interim § 10(k) order under the narrow Leedom exception to the rule precluding jurisdiction over non-final orders. The district court agreed, granted the Association’s motion for summary judgment, and vacated the Board’s § 10(k) order.
On appeal, the sole issue was whether the district court had subject matter jurisdiction under Leedom to issue its order vacating the Board’s § 10(k) interim decision. The exercise of jurisdiction under Leedom requires a plaintiff to make a two-part showing: (1) the challenged Board action exceeds the Board’s statutory authority and (2) absent district court jurisdiction, the party seeking review would be deprived of a “meaningful and adequate” means of asserting its statutory rights. Reversing the district court, the Ninth Circuit concluded that the Association did not meet both parts of the Leedom exception and, therefore, the district court lacked subject matter jurisdiction.
Although the Ninth Circuit agreed that the Board likely exceeded its statutory authority because Union A’s members were public employees not covered by the NLRA, the court also concluded that the Association had alternative means to challenge the Board’s determination. Specifically, the Association could seek to intervene in the ongoing unfair labor practice proceedings, in which the “Board has stated that its General Counsel would not oppose an intervention request by [the Association].” As the Ninth Circuit explained, the Board’s denial of the Association’s motion to intervene in the § 10(k) proceedings did not render futile a subsequent attempt to intervene in the ongoing unfair labor practice proceedings, which are governed by different standards. Alternatively, according to the court, the Association could wait until the Board issued a final order and then seek judicial review under § 10(f), which allows not only the parties to the underlying proceedings but also any “person aggrieved” to seek review. Thus, because the Association had viable, alternative paths to seek review of the Board’s interim § 10(k) order, the Leedom exception was inapplicable.
The Ninth Circuit also rejected the Association’s Noel Canning argument that the Board’s § 10(k) decision was invalid because it was made during the period when the Board lacked a quorum. As the Ninth Circuit held, although district courts have jurisdiction to hear constitutional challenges to agency action, such jurisdiction exists only in situations where meaningful judicial review is otherwise unavailable. Consequently, the Association’s alternative argument failed for the same reason as its Leedom argument: the Association had other means to raise its Noel Canning argument either as an intervenor in the unfair labor practice proceedings or as an “aggrieved person” under § 10(f).
The Ninth Circuit’s decision highlights that judicial review of the Board’s interlocutory orders is available only in exceptional circumstances, where a party has no other means to seek relief.