Punching In: Chevron Casts Shadow on NLRB Top Lawyer Firing Case

Monday morning musings for workplace watchers.

Chevron Precedent|Hair Discrimination

Robert Iafolla: A case involving President Joe Biden’s termination of the National Labor Relations Board’s Trump-era general counsel spotlights a critical issue about precedents that depended on the now-defunct Chevron doctrine.

The US Supreme Court vacated the ruling in that case and sent it back to the US Court of Appeals for the Fifth Circuit to reconsider in light of Loper Bright Enterprises v. Raimondo, which drove a stake through a 40-year-old decision calling on courts to defer to an agency’s reasonable interpretations of ambiguous statutes.

The Fifth Circuit had backed Biden’s authority to sack NLRB General Counsel Peter Robb on Inauguration Day 2021, but that’s not the part of the appeals court decision that’s affected by the end of Chevron deference. The appeals court rejected that claim based on an earlier ruling in the circuit holding that the president can fire the agency’s GC at will.

But the Fifth Circuit cited Chevron to uphold the NLRB’s determination that the choice by Robb’s immediate successor to withdraw a complaint against two affiliates of the International Brotherhood of Teamsters was an unreviewable exercise of prosecutorial discretion.

United Natural Foods Inc., which lodged the allegations against the unions, challenged then-acting General Counsel Peter Sung Ohr’s move to pull back the complaint after the company had filed a motion for summary judgment.

While affording the board Chevron deference, the appeals court decision relied on the Supreme Court’s 1987 ruling in NLRB v. UFCW, which dealt with a labor board general counsel’s determination that can’t be second-guessed by the courts.

Here’s where things get a little tricky: UFCW itself turns on the high court yielding to the agency’s view on an ambiguous portion of the National Labor Relations Act. Justice Antonin Scalia highlighted the role of deference in his concurring opinion, saying that “our decision demonstrates the continuing and unchanged vitality of the test for judicial review of agency determinations of law set forth in Chevron.”

That’s important given that Chief Justice John Roberts’ majority opinion in Loper Bright said that dumping Chevron doesn’t weaken prior cases that relied on its framework.

But Robert’s observation wasn’t part of the binding holding in the decision, but rather the chief justice’s nonbinding commentary known as dicta, said Aaron Saiger, an administrative law professor at Fordham University. Whether Chevron-dependent decisions retain their precedential power is an issue that the justices will likely take up, he said.

UNFI’s attorney, former NLRB Chair Philip Miscimarra of Morgan, Lewis & Bockius LLP, and NLRB spokesperson Matthew Hayward declined to comment.

The National Labor Relations Board seal is displayed on a door at the headquarters in Washington, D.C., on Sept. 30, 2019.

Photographer: Andrew Harrer/Bloomberg via Getty Images

Chris Marr: More than half of US states have passed a version of the CROWN Act since California first enacted it five years ago this month, extending their anti-bias protections to cover hair styles and textures associated with race.

The laws are aimed at combating discrimination against traditionally Black hair styles in the workplace and schools, with many states’ laws naming braids, locs, and twists. But the scope of the protections—particularly whether they prohibit restrictions on hair length—has been the subject of debate this year in Texas courts and inspired at least one state to amend its law.

A Texas state court ruled in February the Barbers Hill Independent School District could continue enforcing its hair length limits for boys, saying the Texas legislature didn’t specifically address hair length when passing its version of the CROWN Act in 2023. A Black student, Darryl George, and his family sued the school district after he was placed on indefinite in-school suspension for wearing his hair longer than the dress code allows. George’s family is appealing.

The decision ran contrary to a federal court’s decision in 2020 that blocked the same school district from enforcing a similar policy, finding it to be discriminatory under the US Constitution’s Equal Protection Clause, partly because the length restrictions applied only to male students. An appeal in that case remains pending at the US Court of Appeals for the Fifth Circuit.

“The CROWN Act seeks to clarify current anti-discrimination laws and make crystal clear that hair discrimination is illegal,” said Patricia Okonta, assistant counsel for the NAACP Legal Defense Fund, which represented the students in the 2020 case. The CROWN Act is relatively new, but “there are many robust measures that already protect against hair-related discrimination” that’s related to race or gender, including the 1964 Civil Rights Act.

Colorado lawmakers, who initially passed a CROWN Act in 2020, expanded their state’s law this year (HB 1451) to specifically include hair length among the traits protected against discrimination.

The bill’s lead sponsor, Rep. Leslie Herod (D), cited the Texas case as the inspiration for her measure.

“We want to make sure that no young person has to go through a court process in Colorado in order to wear their hair in the way that is respectful to their culture,” she told a state House committee in April.

Vermont is the latest of 26 states to enact a version of the CROWN Act, with most applying to private workplaces but a few only covering public schools or state government agencies. Democratic-majority legislatures led the law’s initial spread among the states starting in 2019, but several Republican-majority legislatures have enacted the concept more recently including Louisiana, Nebraska, Tennessee, and Texas.

The US House passed a federal CROWN Act in 2022, but the bill didn’t receive a vote in the Senate. Both chambers of Congress reintroduced CROWN Act proposals this year, with Sen. Cory Booker (D-N.J.) and Sen. Susan Collins (R-Maine) among the latest sponsors.

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