Labor Board Affirms Appointments of In-House Judges

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By Hassan A. Kanu

The federal labor board voted unanimously Aug. 6 to reject a challenge to its authority to hire and rely on in-house judges.

The decision means the National Labor Relations Board will continue to have administrative law judges resolve workplace and union-related disputes between workers and employers. The board’s decision in a case against Westrock Services Inc. can be appealed to federal court, although it seems unlikely a judge would overturn the holding in light of recent decisions by the U.S. Supreme Court.

The NLRB, like a number of other agencies, uses administrative law judges to resolve complaints filed under the federal law it’s tasked with enforcing—the National Labor Relations Act. The board protects the rights of most private-sector workers to engage in union activities, conducts union elections, and investigates unfair labor practice charges.

The Supreme Court decided in June that administrative law judges of the Securities and Exchange Commission are officers of the U.S. and therefore have to be appointed by the president, a federal court, or a department head—according to the U.S. Constitution’s appointments clause.

The high court held in an earlier decision that independent agencies such as the SEC are to be considered “departments” for the purposes of that clause. The members of the SEC are therefore a collective “department head,” the Supreme Court said in Lucia v. SEC.

The members in their unanimous decision said the same reasoning applies to the NLRB, which also appoints ALJs by member voting.

“In sum, the Board collectively, as the Head of Department, validly appoints its administrative law judges in accordance with the appointments clause and has validly appointed each of its existing administrative law judges,” the board members wrote.

A footnote in the opinion notes that Peter Robb (R), the board’s general counsel, “initially argued that the Board’s administrative law judges are employees” as opposed to officers of the U.S. “but subsequently withdrew” the argument.

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