NLRB orders are not self-enforcing. The Board must go to a federal Circuit Court to obtain an enforcement order.

The 4th Circuit (2-1) is now saying that when the NLRB and the charged party stipulate to a settlement agreement, courts lack jurisdiction to enforce a Board order that reflects the terms of the settlement. NLRB v. Constellium Rolled Products (4th Cir 08/05/2022) [PDF].

This is based on the court's interpretation of Article III of the Constitution, which limits the judicial power to "cases and controversies."  The court found that the parties lacked "adverseness."

The Board's General Counsel issued a complaint against an employer. Later, the employer and union entered a Formal Settlement Stipulation. By signing the agreement, the employer effectively withdrew its answer to the complaint before the Board and agreed to stipulated facts. The Stipulation also included proposed terms for a Board order.

The employer agreed, upon entry of the Board’s order, to “immediately comply with the provisions of the order.” The employer also agreed that when the Board sought a judgment in federal court enforcing its order, the employer would waive all defenses and consent to the entry of that judgment.

The Board approved the Formal Settlement Stipulation and issued an order reflecting its terms. A week later the Board petitioned the 4th Circuit to enter a consent judgment against the employer reflecting the order’s terms.

The court would have none of that, saying, "we lack jurisdiction to exercise judicial power when it would have no real consequences for the parties and would only rubberstamp an agreement the parties memorialized in writing and consummated before ever arriving on a federal court’s doorstep."

The court's summary: "In sum, the parties agree on every relevant question potentially before this Court. That agreement led the parties to resolve this dispute among themselves before ever coming to federal court, leaving nothing for this Court to do that would have real consequences in the world. And the Board agrees that [the employer] has complied with the order and continues to do so. There is nothing meaningful for this Court to do. Because this suit lacks adverseness, we lack jurisdiction."

The DISSENT argued that "the NLRB has a sufficient interest in the enforcement of its order to support our jurisdiction."