Exela Enter. Solutions, Inc. v. Nat'l Labor Relations Bd.

• Decision Date: 22 April 2022
• Docket Number: 21-60426
• Citation: 32 F.4th 436
• Parties: EXELA ENTERPRISE SOLUTIONS, INCORPORATED, Petitioner—Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent—Cross-Petitioner
• Court: U.S. Court of Appeals — Fifth Circuit

32 F.4th 436

EXELA ENTERPRISE SOLUTIONS, INCORPORATED, Petitioner—Cross-Respondent,

v.NATIONAL LABOR RELATIONS BOARD, Respondent—Cross-Petitioner,

No. 21-60426

United States Court of Appeals, Fifth Circuit.

FILED April 22, 2022

Daniel D. Schudroff, Jackson Lewis, P.C., New York, NY, for Petitioner/Cross-Respondent.

Ruth E. Burdick, Deputy Assistant General Counsel, National Labor Relations Board, Appellate & Supreme Court Litigation Branch, Washington, DC, Richard Fox, National Labor Relations Board, Newark, NJ, for Respondent/Cross-Petitioner.

Katharine J. Shaw, Assistant General Counsel, United Steelworkers of America, Pittsburgh, PA, for Intervenor United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO/CLC.

Benjamin M. Shultz, Scott R. McIntosh, U.S. Department of Justice, Civil Division, Appellate Section, Washington, DC, Daniel Bentele Hahs Tenny, Esq., U.S. Department of Justice, Civil Rights Division, Washington, DC, for Intervenor United States.

Before Stewart, Clement, and Elrod, Circuit Judges.

Edith Brown Clement:

Exela Enterprise Solutions, Inc. ("Exela"), seeks review of a National Labor Relations Board ("NLRB" or "Board") order finding that Exela violated the National Labor Relations Act ("NLRA") by refusing to bargain with the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO-CLC ("Union"). The Board cross-petitions for enforcement. Because substantial evidence supports the Board's findings, we DENY Exela's petition for review and GRANT the Board's cross-petition for enforcement.

I

Exela provides office services and facilities management at a Bristol-Myers Squibb warehouse in New Brunswick, New Jersey. On March 29, 2019, the Board conducted a representation election at Exela's New Brunswick site. Of fourteen eligible voters, eight employees voted for Union representation and six voted against it.

Exela filed timely objections to the conduct of the Union on the morning of the election and sought to set aside the results. Following a hearing, a Hearing Officer of the NLRB recommended overruling each objection and certifying the Union as the exclusive collective-bargaining representative. A Regional Director of the NLRB adopted the findings and recommendation and certified the Union. The Board declined review.

Exela nevertheless advised that it would not engage in bargaining because it did not consider the Union to be the properly certified representative of its employees. The Union filed an unfair labor practice charge with the NLRB. The then-Acting General Counsel issued a complaint, asserting that Exela violated the NLRA by refusing to bargain in good faith with the Union. See 29 U.S.C. § 158(a)(1), (5). In its answer, Exela reasserted that the Union had been improperly certified. It also raised an affirmative defense that the unfair-labor-practices complaint was ultra vires because the President unlawfully removed the former General Counsel without cause.

The Acting General Counsel moved for summary judgment, which the Board granted, finding that Exela failed to offer new evidence or special circumstances warranting review of the certification decision. The Board declined to address the authority of the Acting General Counsel. The Board's order required Exela to cease and desist from unfair labor practices, to bargain with the Union upon request, to embody any understanding reached in a signed agreement, and to post appropriate notice. Exela petitioned this Court for review.

The Board applied for cross-enforcement of its order certifying the Union as the exclusive collective-bargaining representative of Exela employees at the New Brunswick site.

II

We begin with Exela's challenge to the unfair-labor-practice complaint issued against it by the then-Acting General Counsel. Exela contends that the prosecution was ultra vires because the President unlawfully removed the former General Counsel without cause. The Board declined to rule on the lawfulness of the General Counsel's removal, explaining: "Even assuming, arguendo, that the Board would have jurisdiction to review the actions of the President, we have determined that it would not effectuate the policies of the [NLRA] to exercise this jurisdiction." But the Board has since determined in another labor dispute that the Supreme Court's recent decision in Collins v. Yellen , ––– U.S. ––––, 141 S. Ct. 1761, 210 L.Ed.2d 432 (2021), "foreclosed any reasonable argument that the President lacked authority to remove [the] General Counsel." Aakash, Inc. , No. 32-CA-282957, 371 NLRB No. 46, at *2 (Dec. 30, 2021). Our review is de novo. Poly-Am., Inc. v. NLRB , 260 F.3d 465, 476 (5th Cir. 2001).

On his first day in office, President Biden took the unprecedented step of removing General Counsel Peter B. Robb without cause ten months prior to the expiration of his statutory term.¹ The President designated Peter Sung Ohr as Acting General Counsel.² Then-Acting General Counsel Ohr issued the unfair-labor-practice complaint against Exela. Exela contends that the President's removal of General Counsel Robb was unlawful because the General Counsel of the NLRB enjoys the same protections from removal as the Members of the Board. We disagree.

The Supreme Court recently affirmed the longstanding rule that "[w]hen a statute does not limit the President's power to remove an agency head, [courts] generally presume that the officer serves at the President's pleasure." Yellen , 141 S. Ct. at 1782 ; see also Shurtleff v. United States , 189 U.S. 311, 315, 23 S.Ct. 535, 47 L.Ed. 828 (1903) (requiring "very clear and explicit language" in the statute, and not "mere inference or implication," to establish removal limitations). Thus, we begin by reading the NLRA to determine if express statutory language insulates the General Counsel from removal.

Here, no provision of the NLRA protects the General Counsel of the NLRB from removal. Whereas Congress clearly and unequivocally provided removal protections to the Board Members, it did not grant those same protections to the General Counsel. The statute provides that the five Members of the Board shall be "appointed by the President by and with the advice and consent of the Senate ... for terms of five years each," and "may be removed by the President, upon notice and hearing, for neglect of duty or malfeasance in office, but for no other cause." 29 U.S.C. § 153(a). By contrast, in a separate provision, the NLRA creates the position of the General Counsel, who "shall be appointed by the President, by and with the advice and consent of the Senate, for a term of four years." Id. § 153(d). The provision is silent as to any tenure protections. And no other provision in the NLRA limits the removal of the General Counsel. We do not read Congress' silence as an invitation to graft onto the statute an otherwise absent for-cause limitation. Rather, "when Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion." Yellen , 141 S. Ct. at 1782 (quoting Barnhart v. Sigmon Coal Co., Inc. , 534 U.S. 438, 452, 122 S.Ct. 941, 151 L.Ed.2d 908 (2002) ). Congress knew how to give removal protections to the General Counsel. And Congress chose not to do so.

Exela turns this logic on its head by arguing that we should compare the statutory language specifying the "grounds for Board member removal" with the absence of any removal provisions for the General Counsel. Therefore, Exela reasons, "if Congress wanted to enable the President to remove the Board's General Counsel mid-term, it would not have disparately excluded such language." This gets it exactly backwards. Congress cannot "enable" the President to exercise his removal powers. The President's power to remove derives from Article II of the Constitution, not from Congress. See Myers v. United States , 272 U.S. 52, 163–64, 47 S.Ct. 21, 71 L.Ed. 160 (1926).

Exela next argues that we should read the statutory language, "shall be appointed by the President, by and with the advice and consent of the Senate, for a term of four years," as curbing the President's removal power by providing for an absolute four-year term. See 29 U.S.C. § 153(d) (emphasis added). We disagree. As a textual matter, "shall" applies to the General Counsel's appointment and confirmation. It is not clear that "shall" also applies to the term-limit language. See ANTONIN SCALIA & BRYAN A. GARNER , READING LAW : THE INTERPRETATION OF LEGAL TEXTS 152–53 (2012) ("[A] prepositive or postpositive modifier normally applies only to the nearest possible referent."). But even assuming that "shall" does apply to the statute's provision of a four-year term, the Supreme Court squarely rejected that such language restricts the President's removal powers in a similar context over one hundred years ago.

In Parsons v. United States , the Court ruled on a challenge to the President's authority to remove a Senate-confirmed district attorney from his appointment eight months short of his four-year term. 167 U.S. 324, 327, 17 S.Ct. 880, 42 L.Ed. 185 (1897). Similar to the NLRA, the statutory language provided that district attorneys "shall be appointed for a term of four years." Id. at 327–28, 17 S.Ct. 880 (emphasis added) (quoting Rev. Stat. § 769 (1878)). The former district attorney argued that this language "gives to every district attorney the legal right to hold his office for four years, and that during that time the president has no power to remove him directly ... [or] indirectly." Id. at 328, 17 S.Ct. 880. The Court disagreed. Id. at 338, 17 S.Ct. 880. It held that the statutory language, "shall be appointed," signified only that the district attorney's term would expire at the end of four years, not that he held "an...