A Senate vote expected next week on Obama administration nominees to
the National Labor Relations Board could change the path of an ongoing legal
tussle between Newport News Shipbuilding and a machinists' union.
The International Association of Machinists and Aerospace Workers has been trying since 2007 to organize a group of nuclear safety workers at the shipyard. A lawyer for the union said the emergence of a newly constituted NLRB would mean time-consuming arguments over whether members of an earlier board were properly appointed could be bypassed.
The shipyard successfully argued before the U.S. Fourth Circuit Court of Appeals that an August 2012 NLRB decision ordering it to bargain with 223 workers in its radiological control department was not valid.
In siding with the company, the court said last week that the White House recess appointments, made to the board in late 2011 while the Senate was out for the winter holidays, violated the constitution. However, the appeals court also rejected shipyard arguments that procedures weren't followed properly in the lead-up to the worker vote electing to form a machinists' union local.
"They won the battle. They're not going to win the war," said Bill Haller, IAMAW's associate general counsel said this week.
"The only reason we're not the (workers') representative was because the NLRB lacked the appropriate quorum," he said.
Rather than try to fight the court ruling at the Supreme Court, a process that would slow down the union's effort to be recognized at the shipyard, Haller said the case looks likely to be sent directly to a new NLRB.
"The case ought to go back to the labor board once it has duly constituted members to act," Haller said.
Even if the union can avoid seeing its case tied up before the Supreme Court it won't mark the end of the legal tussle, which pits the union and the federal government on one side and the shipyard on the other.
If the case is not appealed by the government or union to the Supreme Court, the NLRB would have to review the facts of the union election again. A slew of other union election cases reviewed by the NLRB starting in 2012 may need to be handled by a newly-constituted board as well.
There's a recent precedent for this action. In 2010, the Supreme Court overruled hundreds of NLRB decisions after a struggle between a Democratic Senate and the George W. Bush administration left the board with only two of its normal five seats filled, and therefore less than the three-member quorum necessary to act.
Ann Hodges, a labor expert at the University of Richmond School of Law, said about 600 cases had to be reheard at the time, and said a similar process can be expected after the more recent issue is resolved.
The Supreme Court is already set to rule on the constitutional question of the Obama administration's recess appointments after a D.C.-based appeals court ruled them unconstitutional. As a result, Hodges said, the government may well try to take the shipyard case straight to a new NLRB rather than lodge an appeal.
"They may say, 'Ok, we accept the ruling, and we'll let the (new) NLRB decide the issue.'"
Haller said that logic would suit the machinists, who had hoped to resolve the dispute long ago. But he said until the Senate votes on the newest NLRB appointees, the direction of the legal case will be in limbo.
"It's in a bit of a legal black hole right now," he said.
The shipyard said through spokeswoman Christie Miller that the company was "pleased" with last week's ruling by the Fourth Circuit Court of Appeals.
Miller also indicated the case appears far from settled. She said the shipyard's parent company, Huntington Ingalls Industries, "will continue to monitor any further rulings on the union representation issue."
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