Advanced Disposal Svcs East v. NLRB — agency/labor — affirmance — Smith
The Supreme Court held in Noel Canning that the National Labor Relations Board lacked a quorum in 2012 and 2013 because the recess appointments of three of its members were invalid. The case decided today by the Third Circuit involved NLRB actions that were initially invalid but later were ratified by the then-properly-constituted board. The court held that the ratification sufficed to support the board’s actions, and on the merits held that the board’s ruling was supported by substantial evidence. On a preliminary issue — whether the employer forfeit its challenge to NLRB authority by failing to raise the issue before the board — the Third Circuit expressly deepened a circuit split, joining the D.C. Circuit against the Eighth Circuit. I doubt we’ve heard the last of this case.
Joining Smith was Hardiman; Sloviter also was on the panel when it heard argument but assumed inactive status before the opinion issued. Arguing counsel were Daniel Barker for the employer and Kellie Isbell for the NLRB.
MCPc v. NLRB — labor — vacate in part and remand — Krause
A company employee named Galanter was having lunch with a few co-workers, and they discussed how shorthanded and busy they were. Galanter commented that the company could have hired several workers with the $400,000 a year it was paying a new executive. Galanter was canned 8 days later; the company alleged that Galanter lied when confronted about the disclosure. NLRB counsel issued a complaint alleging that the company illegally fired Galanter for complaining about working conditions. The NLRB ruled for the employee and the company appealed.
Today, the Third Circuit reversed in part. It ruled that the employee’s lunchtime disclosure was protected activity as concerted conduct, but remanded for reconsideration of whether that protected activity was the reason for the firing. The opinion is a tour de force.
Joining Krause were Fuentes and Fisher. Arguing counsel were Dean Falavolito of Margolis Edelstein for the employer and Gregory Lauro for the NLRB.
Eighty Four Mining v. Director, Office of Workers’ Compensation Progs. — agency — affirmance — Vanaskie
After a board of the Labor Department awarded black lung benefits to a coal miner, the mining company argued that miner’s claim was untimely because a state board’s denial of state benefits should not restart the federal clock. The Third Circuit today disagreed with the company, denied the petition for review, and affirmed.
Joining Vanaskie was Rendell; Nygaard dissented. Arguing counsel were Norman Coliane of Thompson Calkins for the mining company, Heath Long of Pawlowski Bilonick for the miner, and Helen Cox for the government.