Labor & Employment Law Daily Wrap Up, LABOR—5th Cir.: Plumbing company defeats NLRB’s bid to enforce timeworn order, wins review of anti-union findings, (May 27, 2025)

By Tulay Turan, J.D.

The Board’s negligence caused the extraordinary delay.

The Fifth Circuit denied the NLRB’s motion for summary enforcement of a 2013 order that found a plumbing company violated Sections 8(a)(1), (3) and (4) of the NLRA because the NLRB failed to carry its burden to prove that enforcement would be equitable. The court found the Board’s unclean hands in leaving the case undisturbed for eight years required denial of its application for injunctive relief. In addition, the court granted the company’s cross-petition for review of the order because the Board lacked substantial evidence to attribute a supervisor’s anti-union activities to the company and to find the company’s pre-election layoffs were related to protected union activity. Judge Dennis dissented (AllService Plumbing and Maintenance v. NLRB, No. 23-60293 (5th Cir. May 23, 2025)).

AllService Plumbing and Maintenance is a small, family-owned plumbing company. In 2009, an employee began a drive to unionize the company’s workforce. One supervisor voiced opposition to the organizing effort and notified the company’s vice president about the employee’s activities.

Election date, layoffs. The union filed a certification-of-representative petition with the NLRB, and AllService and the union agreed on an election date. After that agreement, AllService laid off three employees. The union lost the election, and the supervisor celebrated the union’s defeat in front of other employees. He also told the vice president that someone had come into the facility and taken photos of company bulletin boards for later use by the union. The vice president allegedly said if he found out who did that, he would punish the person.

NLRB complaint filed. The union filed a complaint with the Board claiming that AllService violated the NLRA based on the supervisor’s actions and the pre-election layoffs. In 2011, an NLRB ALJ issued a decision finding that AllService violated the NLRA because of the supervisor’s various activities and that the layoffs were unlawfully related to protected union activity. The ALJ ordered AllService to reinstate the three discharged employees with backpay and daily compound interest.

No timely exceptions. AllService did not file timely exceptions to the 2011 order. Thus, in January 2012, the NLRB entered an order adopting the ALJ’s findings and conclusions. A second ALJ heard the case in 2013 to calculate damages. In May 2013, the NLRB’s second ALJ ruled against AllService and ordered the company to pay over $100,000 in damages. In July 2013, the full Board agreed with its ALJ’s 2013 decision.

Enforcement petition. Thereafter, the Board asked the Fifth Circuit for permission to enforce the July 2013 order. However, while the NLRB’s petition was pending, the Supreme Court decided NLRB v. Noel Canning, 573 U.S. 513 (2014). Recognizing that its orders were legally infirm in light of the ruling, the NLRB set aside its own decision adopting its ALJ’s 2013 backpay order. The NLRB then moved to dismiss its enforcement petition, and the Fifth Circuit granted that motion.

Case revived. In the wake of Noel Canning, the Board attempted to revive its vitiated decisions and ratified them nunc pro tunc. However, it left AllService’s case dismissed. The case sat on the Board’s docket for eight years. In 2022, the NLRB issued a “Notice to Show Cause” asking AllService for any reason it ought not issue a supplemental order re-adopting the nine-year old ALJ backpay decision from 2013.

AllService objected, arguing adoption of the old order would be unfair because it suffered two floods that severely damaged its business since the decision, and it was not prepared to readdress the case. The NLRB again adopted the 2013 ALJ decision and applied to the Fifth Circuit for summary enforcement of its 2022 supplemental order. AllService filed a petition for review of the same order. The two petitions were now before the court.

Exhaustion. Denying the Board’s request for summary enforcement of its 2013 order, the court found the Board failed to carry its burden to prove that enforcement would be equitable. The court rejected the Board’s argument that AllService failed to exhaust its arguments against enforcement. AllService’s response to the June 2022 Show Cause order put the Board on notice that the company objected to enforcement. AllService contended that it would be unfair to enforce a decade-old Board order given the prejudice AllService suffered in intervening years due to multiple floods. “That claim neatly encompasses its later objections that enforcement would prejudice AllService,” the court wrote. The court declined to hold AllService to a stricter “magic words” standard. The company put the Board on notice that it objected to enforcement, and Section 160(e) requires nothing more, according to the court.

Extraordinary circumstances. Furthermore, even if AllService failed to exhaust its prejudice argument, Section 160(e) would excuse that failure, the court found. That section excuses a party from exhausting its objections under “extraordinary circumstances.” This case, the court said, easily qualified as “extraordinary.”

AllService’s objection to enforcement was based on intervening events – including multiple floods – that had not occurred at the time of the original objection period. Also, the extraordinary delay was caused exclusively by the Board’s negligence. The Board dismissed its enforcement petition after Noel Canning. It set aside its order adopting the 2013 ALJ decision, and it processed other pre-Noel Canning cases while leaving this one undisturbed for eight years. The court said the Board cannot then turn around and “demand that AllService jump through an administrative hoop in 28 days upon pain of forfeiting whatever objections it wants to make against the Board’s decision.”

Petition dismissed with prejudice. The court also rejected the Board’s second justification for granting it an injunction. The Board argued that everything that happened after Noel Canning was irrelevant. The Board contended that all of its work was completed when it entered its order in July 2013, and, thus, its injunctive relief request in this case was just a resuscitation of the one it filed in the Fifth Circuit in 2014.

The court rejected that contention because the Board dismissed with prejudice its 2014 petition after Noel Canning. Dismissals entered under Federal Rule of Appellate Procedure 42(b) are presumptively with prejudice. In addition, circuit rules provide a process for seeking a dismissal without prejudice, and the NLRB did not seek to utilize that procedure in 2014. Thus, “the Board cannot pretend that it is merely resuscitating its 2014 petition for enforcement.” Accordingly, the court denied the NLRB’s request for an injunction enforcing its order.

Lack of substantial evidence. Turning to AllService’s petition for review, the court found there were two arguments that justified granting the petition. First, the Board lacked substantial evidence to attribute the supervisor’s activities to AllService. Second, the Board lacked substantial evidence to find that AllService’s pre-election layoffs were related to protected union activity.

Limited role. The court found that the supervisor’s actions could not be attributed to AllService, and the NLRB’s contrary finding that AllService violated Section 8(a)(1) of the NLRA must be set aside. The Board noted the supervisor’s capacity at AllService as limited “solely on the basis of his ability to assign work to employees.” Nevertheless, it held that he was “clearly an agent” for all purposes. The Fifth Circuit found that was reversible error. His various union-related comments and actions were far outside the scope of his limited work-assignments role.

Pre-election layoffs. In addition, the Board’s determination that AllService’s layoffs were unlawfully infected with anti-union animus lacked substantial evidence. The ALJ relied substantially on the supervisor’s statements and actions in finding that AllService harbored anti-union animus. As previously discussed, the supervisor’s conduct could not be attributed to AllService.

Alternatively, the Board’s animus analysis relied on the vice president’s alleged comment about punishing the person who took pictures of the bulletin boards because the vice president made layoff decisions. The appellate court found the Board ignored any evidence that did not fit its narrative.

The record contained substantial evidence that the vice president did not in fact harbor anti-union bias. The union organizer testified that he never had any disagreements with the vice president and that no employee ever told him that they were concerned the vice president would fire them for supporting the union. The record also showed that the vice president hired two of the later-fired employees knowing they were union members. Yet, the Board did not mention this evidence in its analysis of AllService’s alleged anti-union animus. Its failure to consider contradictory evidence or evidence from which conflicting inferences could be drawn meant the Board’s order lacked substantial evidence, the court found.

Thus, the court denied the NLRB’s application for an injunction summarily enforcing its order and granted AllService’s petition for review.

Dissent. In his dissent, Judge Dennis said the Board was entitled to summary enforcement of its orders because AllService did not raise objections below and no extraordinary circumstances allowed it to raise new objections now. He contended the majority ignored “sturdy circuit precedents” that refused to consider arguments not preserved in written exceptions to the Board. In addition, AllService did not, and could not, point to any legal authority supporting the notion that the flood that damaged its facilities and its belief that the case ended years ago were extraordinary circumstances within the meaning of Section 10(e).

Judge Dennis also argued there was no procedural bar preventing the court from considering the Board’s application for summary enforcement. He contended the majority imposed a jurisdictional time limit for seeking appellate-court enforcement that does not exist. In addition, he disagreed with the majority’s findings on the merits of AllState’s petition for review.

The case is No. 22-60514.

Judge: Oldham, A.

Attorneys: Ruth E. Burdick for the NLRB. Thomas Harry Kiggans (Phelps Dunbar) for All Service Plumbing and Maintenance, Inc.

Companies: All Service Plumbing and Maintenance, Inc.

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