- GC’s “boilerplate” language was sufficient following the SCOTUS decision
- Electrical contractor claimed NLRB complaint was invalid
- DC, 3rd Circuits came to the same conclusion
(Reuters) – A U.S. appeals court on Friday upheld the ratification by Obama-era National Labor Relations Board attorney general Richard Griffin of measures taken by his predecessor, Lafe Solomon, after the court Supreme Court of the United States concluded that Solomon’s appointment was invalid.
A unanimous panel of three judges from the 2nd United States Court of Appeal rejected New Jersey electrical contractor Colacino Industries Inc.’s allegations that while Griffin had the power to ratify Solomon’s complaint against the company, his use of “catch-all” language to do so in a series of cases was insufficient.
The Supreme Court in NLRB v. Southwest General Inc in 2017 said Solomon had served poorly as acting general counsel on the board after former President Barack Obama appointed him to the job on a permanent basis. Griffin soon after issued identical notices ratifying Solomon’s actions in numerous cases.
Circuit 2 said Griffin correctly ratified the Colacino complaint and upheld the board’s decision Decision 2018 that the company illegally refused to negotiate with a union and dismissed an employee out of anti-union animosity.
Lawyers for the companies in Harris Beach did not immediately respond to a request for comment. Neither does the NLRB.
Solomon’s office in a 2013 complaint claimed that Colacino’s owner and a closely related company owned by his father, Newark Electric Corp, were forced to negotiate with a local chapter of the International Brotherhood of Electrical Workers.
Colacino in 2012 withdrew from a multi-employer bargaining deal with the IBEW for a trial period, but Newark Electric never did and the two companies were alter egos, Solomon claimed.
An administrative judge sided with the union, and the five-member council upheld the decision in 2015.
The companies took the case to the DC Circuit and the Supreme Court ruled on Southwest General while the appeal was pending. The High Court ruled that the actions Solomon took from his appointment in January 2011 until Obama withdrew his appointment more than two years later were invalid.
Circuit DC then referred Colacino’s case to the board. Griffin at that time ratified the complaint filed four years earlier, and the NLRB in 2018 upheld its earlier ruling in the case.
Colacino appealed again, arguing that Southwest General had struck down the complaint made by Solomon and could not be reactivated by Griffin. And even if it could, the generic language used by Griffin’s office did not demonstrate the “full knowledge of the relevant facts” necessary for valid ratification under federal law, the company said.
On Friday, the 2nd Circuit said that while federal law allows the overturning of invalid public servants’ actions, it does not require it.
The tribunal is bound by the presumption that government actors such as the NLRB’s attorney general performed their duties properly, and Colacino presented no evidence that Griffin’s office was unaware of the facts of the case. , wrote circuit judge Susan Carney.
The court joined the 3rd and DC circuits in deciding that Griffin had correctly ratified the actions taken by Solomon.
The jury for Circuit 2 included Circuit Judge John Walker and US District Judge John Koeltl of the Southern District of New York, who sat by designation.
The case is National Labor Relations Board v. Newark Electric Corporation, 2nd United States Court of Appeals, No. 18-2784.
For the NLRB: Milakshmi Rajapakse
For Business: Edward Trevvett of Harris Beach