Labor & Employment Law Daily Wrap Up, LABOR—UNFAIR LABOR PRACTICES—2d Cir.: Severance of remedial issue does not render NLRB order non-final, (Apr 4, 2025)

By Ronald Miller, J.D.

The Board’s determination that the employer improperly failed to recognize or bargain with the union marked the “consummation” of its decision-making process.

Nexstar Media was not entitled to dismissal of an NLRB application for the enforcement of a decision ordering the employer to recognize and bargain with a union, ruled the Second Circuit. The employer argued that the order was not final because the Board had reserved the issue of whether Nextar should also compensate its employees for its delay in bargaining, and it moved to dismiss for lack of jurisdiction. Though the Second Circuit has not yet decided in a precedential opinion whether the NLRB’s severance of a discrete remedial issue impairs the court’s jurisdiction to review an application to enforce an otherwise final order, it agreed with four sister circuits that have held that the agency’s severance of a discrete remedial issue does not necessarily render an NLRB order non-final (NLRB v. Nexstar Media, Inc., No. 24-2818 (2d Cir. Apr. 3, 2025)).

The Board sought enforcement of its order of August 2024 directing the employer, Nexstar Media, to recognize and bargain with the union. That order reserved the issue of whether Nexstar should also compensate its employees for its delay in bargaining with the union. Because the Board reserved the remedial-relief issue for future consideration, Nexstar argued that the order was not final and moved to dismiss this enforcement proceeding for lack of jurisdiction.

Question of first impression. The Second Circuit observed that it has not yet decided in a precedential opinion whether the NLRB’s severance of a discrete remedial issue impairs the court’s jurisdiction to review an application to enforce an otherwise final order. Four sister Circuits, including the Eleventh, Third, Ninth, and D.C. Circuit, have held that the NLRB’s severance of a discrete remedial issue does not necessarily render an NLRB order non-final. The Second Circuit reached the same conclusion.

“Final” order. To be considered “final,” an agency order must satisfy two criteria: “First, the action must mark the consummation of the agency’s decision-making process—it must not be of a merely tentative or interlocutory nature.” An agency process reaches “consummation” when the agency “has arrived at a definitive position on the issue.”

“[S]econd, the action must be one by which rights or obligations have been determined, or from which legal consequences will flow.” For this prong, “the core question is whether the result of the agency’s decision-making process is one that will directly affect the parties.”

Obligation to bargain. The appeals court concluded that the order at issue here is final. First, the NLRB’s determination that Nexstar improperly failed to recognize or bargain with the union and must now do so marked the “consummation” of its decision-making process concerning Nexstar’s obligation to bargain. There was no indication that the Board will have the opportunity to change its position on this refusal-to-bargain issue in any severed proceeding regarding the remedial-relief issue. The Board’s position was thus definitive on the issues resolved by the order that the Board petitioned the Second Circuit to enforce.

Second, the Board’s order was one “‘from which legal consequences’—the requirement to bargain with the Union—‘will flow’ if enforced.” The Board’s order determined that Nexstar must perform an action that it has thus far avoided—namely, bargain with the union. Under these circumstances, the Board’s order was final, and the appeals court had jurisdiction over the Board’s petition to enforce it.

Accordingly, the employer’s motion to dismiss the Board’s application for enforcement of its order was denied.

The case is No. 24-2818.

Judge: Per curiam.

Attorneys: Ruth E. Burdick for NLRB. Dean Kpere-Daibo (Constangy, Brooks, Smith & Prophete) for Nexstar Media Inc.

Companies: Nexstar Media Inc.

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