WestRock Services, Inc.

National Labor Relations Board - Board Decisions

Aug 6, 2018

366 NLRB No. 157 (N.L.R.B. 2018)

366 NLRB No. 157
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
WestRock Services, Inc. and Graphic Communica-
tions Conference of the International Brother-
hood of Teamsters, Local 197-M. Case 10–CA–
195617
August 6, 2018
ORDER DENYING MOTION
BY CHAIRMAN RING AND MEMBERS PEARCE,
MCFERRAN, KAPLAN, EMANUEL
On October 19, 2017, the Respondent filed a motion to
dismiss the complaint in this proceeding, asserting that
the Board lacks subject-matter jurisdiction because Ad-
ministrative Law Judge Robert A. Ringler’s appointment
is invalid under the Appointments Clause of the United
States Constitution. On October 26, 2017, the General
Counsel and the Charging Party filed separate opposi-
tions to the Respondent’s motion. On November 15,
2017, the Deputy Executive Secretary of the National
Labor Relations Board sent a letter to the parties stating
that the Board had decided to take the Respondent’s mo-
tion under advisement, and, pending the Board’s further
consideration and resolution of the motion, the parties
and the judge were directed to proceed with the hearing.
On June 21, 2018, the Supreme Court issued its decision
in Lucia v. SEC, 585 U.S. ___,138 S.Ct. 2044 (2018),
holding that administrative law judges of the Securities
and Exchange Commission (SEC or Commission) are
officers of the United States and thus are subject to the
Appointments Clause. For the reasons discussed below,
we deny the Respondent’s motion.
The Respondent contends that the judge in this matter
is an inferior officer and therefore must be appointed
pursuant to the Appointments Clause. Although the
Court’s holding in Lucia was specific to SEC administra-
tive law judges, its reasoning supports a determination
that Board judges, like SEC judges, are inferior officers,
and as such we agree that they must be appointed pursu-
ant to the Appointments Clause.1
The Respondent further contends that Judge Ringler’s
appointment is constitutionally defective because he was
not appointed by the President, a Court of Law, or a
Head of Department, as authorized by the Appointments
Clause.2 Specifically, the Respondent argues that the

1 The General Counsel initially argued that the Board’s administra-
tive law judges are employees, but subsequently withdrew that conten-
tion.
2 U.S. Const., Art. II, § 2, cl. 2. That provision states:
Board is not a Department under that provision, claiming
that the term encompasses only the Cabinet-level agen-
cies or Executive Departments listed at 5 U.S.C. § 101,
such as the Departments of State, Treasury, and Defense,
or in the U.S. Government Manual. However, the Su-
preme Court held in Free Enterprise Fund v. Public
Company Accounting Oversight Board, 561 U.S. 477,
512 (2010), that the SEC, as a “freestanding component
of the Executive Branch, not subordinate to or contained
within any other such component, . . . constitutes a ‘De-
partmen[t]’ for the purposes of the Appointments
Clause.” The Court’s holding on this issue in Free En-
terprise Fund applies equally to the Board as a “free-
standing component of the Executive Branch.” There-
fore, contrary to the Respondent’s contention, the Board
is a Department within the meaning of the Appointments
Clause.
We also reject the Respondent’s argument that the
Board’s Members do not collectively constitute a Head
of Department. In Free Enterprise Fund, the Court held
that the SEC’s Commissioners collectively constituted a
Head of Department under the Appointments Clause. Id.
at 512–513. The Court reasoned that the SEC’s authority
was vested in the Commissioners jointly, with a Chair-
man who is designated by the President and “exercises
administrative and executive functions subject to the full
Commission’s policies.” Id. at 512. Furthermore, the
determination that the entire Commission was the Head
of Department, the Court found, was consistent with the
Reorganization Act, which provides that “‘the head of an
agency [may] be an individual or a commission or board
with more than one member.’” Id. (quoting 5 U.S.C §
904). In Lucia, the Court reiterated this holding, stating
of the SEC, “To be sure, the Commission itself counts as
a ‘Head[ ] of Department[ ]’” (138 S.Ct. at 2050) (alter-
ations in original) (citations omitted), and noting that the
parties “acknowledge[d] that the Commission, as a head
of department, can constitutionally appoint [administra-
tive law judges],” id. at 2051 fn. 3, although it further
held that the administrative law judges at issue there
were invalidly appointed by other staff members, rather
than the entire Commission, id. at 2051, 2055.
Like the SEC, the Board collectively is a Head of De-
partment. Section 3(a) of the Act defines “the Board” as
the five members appointed by the President, with one
member designated by the President as the Chairman.

[B]y and with the Advice and Consent of the Senate, [the President]
shall appoint . . . all other Officers of the United States, whose Ap-
pointments are not herein otherwise provided for, and which shall be
established by Law: but the Congress may by Law vest the Appoint-
ment of such inferior Officers, as they think proper, in the President
alone, in the Courts of Law, or in the Heads of Departments.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2
Section 4(a) provides in part, “The Board shall appoint
an executive secretary, and such attorneys, examiners,
and regional directors, and such other employees as it
may from time to time find necessary for the proper per-
formance of its duties.”3 Consistent with those provi-
sions, Section 201 of the Board’s Rules and Regulations
states in part, “The Board appoints administrative law
judges and, subject to the provisions of the Administra-
tive Procedure Act and section 4(a) of the National Labor
Relations Act, exercises authority over the Division of
Judges.” Pursuant to the Board’s established procedures,
each of the Board’s existing administrative law judges
has been validly appointed by the Board collectively as
the Head of Department. Judge Ringler was appointed
by the Board in November 2010, and he began serving as
an administrative law judge in January 2011.
In sum, the Board collectively, as the Head of Depart-
ment, validly appoints its administrative law judges in
accordance with the Appointments Clause and has valid-
ly appointed each of its existing administrative law judg-
es, including Judge Ringler. Therefore, we find that the
Respondent has failed to show that it is entitled to judg-

3 The title “administrative law judge” was adopted in 5 U.S.C. §
3105 in 1978, in place of “examiners.” See Pub. L. No. 95-251 §2, 92
Stat.183, 183 (1978). Sec. 3105 states in part: “Each agency shall
appoint as many administrative law judges as are necessary for pro-
ceedings required to be conducted in accordance with sections 556 and
557 of this title.”
ment as a matter of law, and we deny the Respondent’s
motion to dismiss the complaint.
Dated, Washington, D.C. August 6, 2018
_____________________________________
John F. Ring, Chairman
_____________________________________
Mark Gaston Pearce, Member
_____________________________________
Lauren McFerran, Member
_____________________________________
Marvin E. Kaplan, Member
________________________________________
William J. Emanuel Member
(SEAL) NATIONAL LABOR RELATIONS BOARD