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5th Circuit passes on NLRB cases from elsewhere

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in Employment Law,Human Resources

Generally, the different federal appeals courts have somewhat different views on the law. Some lean conservative in their interpretations of the law; others are more liberal. That’s one reason national companies sometimes “shop” for a circuit they think will rule their way.

The 5th Circuit Court of Appeals, whose decisions cover Texas employers, tends toward conservative rulings. It recently rejected a case that could have opened up the litigation floodgates for companies that have pending unfair labor practice charges.

Recent case: The United Auto Workers (UAW) filed an unfair labor practice charge against Bally’s Park Place, a New Jersey casino operator. The National Labor Relations Board (NLRB) granted summary judgment to the UAW.

Bally’s appealed to the 5th Circuit to review the case.

The NLRB moved to dismiss the appeal, arguing for lack of jurisdiction and improper venue. Bally’s claimed that, because some of its customers came from homes in the 5th Circuit to New Jersey casinos, and because it advertised in states within the 5th Circuit, it conducted business in the circuit and could sue there.

The 5th Circuit dismissed Bally’s appeal. Bally’s could not show that it transacts business in the 5th Circuit for purpose of appealing an NLRB decision.

The court reasoned that if it had held that Bally’s had transacted business in the 5th Circuit, then it would have opened the door to allow almost any corporation to obtain judicial review of an NLRB final order in any Circuit Court of Appeals. (Bally’s Park Place, Inc., v. National Labor Relations Board, No. 08-60593, 5th Cir., 2008)

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