32 F.4th 436
5th Cir.2022Background
- Exela Enterprise Solutions provided services at a Bristol-Myers Squibb warehouse in New Brunswick, NJ; a representation election on March 29, 2019 resulted in an 8–6 vote in favor of the Union.
- Exela timely objected to the election; an NLRB Hearing Officer and Regional Director overruled Exela’s objections and certified the Union; the Board declined review.
- Exela refused to bargain and the Union filed an unfair-labor-practice charge; the Acting NLRB General Counsel (Peter Ohr), appointed after President Biden removed General Counsel Peter Robb, issued a complaint alleging refusal to bargain.
- Exela argued the prosecution was ultra vires because Robb’s removal was unlawful and also raised objections to the election based on an alleged union agent (Fred Johnson) and union representatives near the polling site.
- The Board granted summary judgment for the Acting General Counsel, ordered Exela to bargain, and required remedial postings; Exela petitioned the Fifth Circuit for review and the Board sought enforcement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Legality of Robb's removal / Acting GC authority | Robb’s mid-term removal was unlawful; prosecution by Acting GC was ultra vires | NLRA contains no removal protection for the General Counsel; President lawfully removed Robb; Acting GC validly prosecuted | Court: NLRA does not provide for-cause removal protection for the General Counsel; removal lawful; Acting GC had authority to prosecute |
| Meaning of “shall be appointed…for a term of four years” in 29 U.S.C. §153(d) | “Shall…for a term of four years” creates an absolute four-year term and implied for-cause protection | That language governs appointment/term expiration, not removal; Parsons and Myers foreclose reading it as a removal bar | Court: statutory term language does not restrict Presidential removal power; precedents reject implied removal immunity |
| Whether Fred Johnson was an agent of the Union (Peerless/agency rule) | Johnson (shop steward, local president) met with Exela employees during shifts within 24 hours of the election; Union responsible for agent’s conduct | No evidence Johnson had actual or apparent authority to organize Exela employees; Union organizers on-site were Callow and Archila; no proof Union vested him with authority | Court: substantial evidence supports Board’s finding Johnson was not the Union’s agent; election objection overruled |
| Presence of Union reps near polling site (Milchem / Boston Insulated factors) | Two Union reps stood near polling entrance just before polls opened, violating Milchem and interfering with voters | Reps were ~80 feet from entrance, briefly present, no voters seen, no interaction or prolonged conversations; Milchem inapplicable | Court: Board reasonably found no electioneering or interference; Milchem not triggered; Boston factors not met; objection overruled |
Key Cases Cited
- Collins v. Yellen, 141 S. Ct. 1761 (2021) (presumption that President may remove executive officers unless statute plainly restricts removal)
- Myers v. United States, 272 U.S. 52 (1926) (President’s removal power over executive officers and rejection of fixed-term immunity)
- Parsons v. United States, 167 U.S. 324 (1897) (term-of-office language does not confer immunity from removal)
- Seila Law LLC v. CFPB, 140 S. Ct. 2183 (2020) (removal protections unlawful where they impede President’s Article II duties)
- Humphrey’s Executor v. United States, 295 U.S. 602 (1935) (upholding for-cause removal for multimember quasi‑legislative/judicial agencies)
- Wiener v. United States, 357 U.S. 349 (1958) (inferring tenure protection where officer’s adjudicative function warranted independence)
- NLRB v. United Food & Commercial Workers Union, Local 23, 484 U.S. 112 (1987) (distinguishing prosecutorial and adjudicative functions of General Counsel and Board)
- Con-way Freight, Inc. v. NLRB, 838 F.3d 534 (5th Cir. 2016) (standard for proving agency in election-objection context)
- Boston Insulated Wire & Cable Sys., Inc. v. NLRB, 703 F.2d 876 (5th Cir. 1983) (applying multifactor test for electioneering interference)
- UNF W., Inc. v. NLRB, 844 F.3d 451 (5th Cir. 2016) (substantial-evidence and appellate standards in NLRB representation proceedings)