The NLRB, FVRA and Limitations of Chevron Deference


On August 7, 2015, the U.S. Court of Appeals for the District of Columbia vacated an order of the National Labor Relations Board (NLRB or Board) in an unfair labor practices matter because the Board’s Acting General Counsel, who plays a very prominent role in the Board’s enforcement work, was serving in that capacity in violation of the Federal Vacancies Reform Act of 1998 (FVRA).  The case is SW General, Inc. dba Southwest Ambulance v. National Labor Relations Board

SW General operates an ambulance service in Arizona.  Following the expiration of the collective bargaining agreement, an unfair labor practices act complaint was filed with the NLRB by the union representing many of the emergency medical personnel working for the ambulance service.  The ambulance service objected to the enforcement proceeding, alleging that the Acting General Counsel was acting in that capacity in violation of the FVRA.  The Board adopted an enforcement order issued by an administrative law judge that rejected this defense, and an appeal was filed with the DC Circuit.

The Court of Appeals agreed with SW General, vacated the order, and rejected the Board’s argument on appeal that, properly construed, the FVRA did not prohibit the service of the Acting General Counsel. Interestingly, the Court of Appeals also noted in a footnote that the NLRB was not entitled to Chevron deference when it was interpreting the FVRA, a general statute not committed to the Board’s administration.  For that matter, neither is the DOJ’s Office of Legal Counsel, whose 1999 interpretation of the 1998 statute coincided with the Board’s views.