AFL-CIO Litigation Docket
(Updated June 2022)
* New updates since the previous Litigation Docket are indicated by asterisks.
Courts of Appeals
D.C. Circuit
Pending:
NNU v. OSHA – Mandamus action seeking order directing OSHA to maintain the COVID-19 Emergency Temporary Standard for the healthcare industry in place until the agency promulgates a permanent healthcare standard. In addition to NNU, AFT, AFSCME, and the AFL-CIO are also petitioners in this case.
UFCW & AFL-CIO v. OSHA – Whether OSHA erred in its determination that a COVID-19 Emergency Temporary Standard was not necessary to protect workers outside the healthcare industry. Case is being held in abeyance pending resolution of related litigation.
AFL-CIO v. NLRB (AFL-CIO I) – Whether the Board violated the APA by promulgating the 2019 Representation Rule without notice and comment and whether the Rule is substantively arbitrary and capricious. The Board also argues that an APA challenge to an NLRB rulemaking is properly brought in the court of appeals rather than the district court.
Decided:
Teamsters Local 350 v. NLRB (Browning-Ferris Industries) – On July 29, 2022, the D.C. Circuit granted the Union’s petition for review of the Trump Board’s decisions intending to erase the Browning-Ferris joint-employer standard. In a prior decision, the D.C. Circuit, while largely agreeing that the common law required consideration of reserved control and indirect control, remanded to the Board to further explain what indirect control in this case was relevant to the analysis.
On remand, the Trump Board ignored the Court’s remand instructions, and instead found that applying the Browning-Ferris I standard retroactively was manifestly unjust to BFI. The Board then simply adopted the RD’s determination that BFI was not a joint employer.
On appeal, the Court found that the Board “made multiple overlapping errors in its retroactivity analysis,” and remanded to the Board. Importantly, the Court reiterated that the Board’s joint-employer standard must be consistent with the common law, and that the Board had failed to explain how its pre-Browning-Ferris standard met this requirement. The Board has indicated that it intends to engage in rulemaking on the joint-employer standard. Hopefully, this decision will offer it some guidance on how to proceed. A copy of the decision can be found here.
Fifth Circuit
Decided:
*Exela Enterprise Solutions, Inc. v. NLRB – Holding that President Biden’s removal of then General Counsel Robb was lawful.
Pending:
UNFI, Inc. v. NLRB – Whether a motion for summary judgment to the Board moves the merits of the complaint to the Board, and thereby removes the complaint from the prosecutorial discretion of the General Counsel, and whether President Biden had the authority to remove then-General Counsel Robb.
Sixth Circuit
Pending:
*Painting Contractor, LLC v. NLRB (IUPAT District Council 6) – Whether a tentative agreement bargained by a multiemployer bargaining association was binding prior to ratification, so that the Company could not withdraw from the association pending the ratification of the TA, and instead had to honor it upon ratification.
Eighth Circuit
Decided:
*NLRB v. Noah’s Ark Processors (UFCW Local 293) – Enforcing the Board’s conclusions that the employer failed to bargain in good faith, that a spontaneous work stoppage by a group of employees was protected, and that the remedies ordered by the Board – including reimbursement of bargaining expenses and a notice reading – were reasonable.
Ninth Circuit
Decided:
*Morgan v. U.S. Soccer Federation – The parties settled this case concerning Equal Pay Act and Title VII claims brought by members of the U.S. Women’s National Soccer Team. See NYT article on the settlement and follow up on the collectively bargained equal pay agreement.
District Courts
District of the District of Columbia
Pending:
AFL-CIO v. NLRB (AFL-CIO II) – Whether the Board’s 2020 Rule concerning blocking charges, voluntary recognition, and proof of majority status in the construction industry is arbitrary and capricious under the APA. In late 2020, the district court placed this case in abeyance pending the D.C. Circuit’s decision in AFL-CIO I concerning whether an APA challenge to an NLRB rule is properly brought in the court of appeals rather than the district court.
State Courts
Washington Supreme Court
Decided:
Glacier Northwest v. Teamsters Local 174 – Holding that a tort suit seeking damages against the union for concrete ruined during a strike by delivery drivers was preempted because the strike was arguably protected. The AFL-CIO filed an amicus brief explaining that the strike was protected under Board law and that, in any event, the state court should stay proceedings to permit the Board to rule on pending unfair labor practice charges concerning the same events. Petition for cert. pending.