CVS Pharmacy

372 NLRB No. 1 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. CVS/Pharmacy Employer/Petitioner and Teamsters Local 272 Union. Case 13–UC–266228 October 24, 2022 ORDER BY CHAIRMAN MCFERRAN AND MEMBERS RING AND WILCOX On January 7, 2022, the National Labor Relations Board issued a Notice to Show Cause in this proceeding, which invited any party to show cause why the Board’s February 5, 2021,1 Order Granting Review and Remanding (not re- ported in Board volumes) and the Office of the Executive Secretary’s May 25 order granting the Acting Regional Director’s request that the Board transfer the Em- ployer/Petitioner’s Request for Review to the Regional Director for reconsideration (not reported in Board vol- umes) should not be vacated, and why the Board should not re-adjudicate this case, following the Board’s ac- ceptance of a determination by the Designated Agency Ethics Official (DAEO) that then-Member Emanuel, who participated in the decision along with Chairman McFer- ran and Member Kaplan, should have been disqualified. As the Notice explained, the DAEO’s determination was based on an investigation conducted by the Board’s In- spector General, who concluded that then-Member Eman- uel’s participation violated a criminal statute, 18 U.S.C. § 208(a), and its implementing regulations, 5 C.F.R. § 2640.201(b)(2)(i), because of his ownership of a con- flicting financial interest in a sector mutual fund.2 The Notice observed that the “presumptively appropriate rem- edy for Member Emanuel’s unlawful participation in this case is to vacate the February 5, 2021 and May 25, 2021 orders and to re-adjudicate the November 5, 2020 Request for Review de novo.” In response to the Notice, the Employer/Petitioner and Union each filed responses in which they argued that, due to subsequent events flowing from the Board’s February 5 and May 25 orders, the Board should not vacate those 1 All dates hereinafter are in 2021 unless otherwise noted. 2 At relevant times, Member Emanuel owned more than $50,000 in share of the Health Care Select Sector SPDR Fund EFT, which in turn owned CVS Health Corporation common stock. Member Emanuel did not timely disclose his ownership of this sector mutual fund, which pre- vented a disqualification determination from being made before Member Emanuel participated in this case and before the Board order and the Ex- ecutive Secretary’s order were issued. In Exxon Mobil Research & Engineering, 371 NLRB No. 128 (2022), the Board explained that “[i]n violation of his ethics agreement with the Government, Member Emanuel failed to inform himself of potential fi- nancial conflicts based on his sector-fund holdings” and that his orders. Specifically, following the February 5 order, the Union unequivocally disclaimed interest in the Team Leader position, which was the disputed position underly- ing the instant unit clarification petition and, following a hearing on the Team Leaders’ alleged Section 2(11) status (which the Union did not contest), the Acting Regional Director entered an order clarifying the unit to exclude that position. Additionally, after over 5 years of collective- bargaining negotiations, the parties have reached a tenta- tive collective-bargaining agreement (albeit one that was not yet ratified when the parties submitted their respective responses herein). The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. For the reasons explained below, the Board has decided to vacate and set aside the February 5 decision, re-adjudi- cate the Employer-Petitioner’s November 11, 2020 re- quest for review and, in recognition of the unique circum- stances at issue in this case, enter a new order granting re- view and remanding nunc pro tunc as of February 5. As set forth in Exxon Mobil Research & Engineering, 371 NLRB No. 128, slip op. at 2 (2022), decided after the notice to show cause here was issued, the Board has con- cluded that vacatur “is the proper remedy . . . where a vi- olation of 18 U.S.C. § 208(a) is established.” Thus, we conclude that vacating the February 5 decision is appro- priate and consistent with Exxon. Accordingly, we shall re-adjudicate the Employer/Peti- tioner’s November 11, 2020 Request for Review. We see no reason for additional briefing from the parties. Having reviewed that Request for Review de novo, for the reasons set forth in the Board’s February 5 order, which is incor- porated herein by reference, we find that the Regional Di- rector erred in interpreting Washington Post Co., 254 NLRB 168 (1968), grant the Employer/Petitioner’s No- vember 11, 2020 Request for Review, reinstate the peti- tion, and remand the case to the Regional Director for fur- ther proceedings consistent with Goddard Riverside Com- munity Center, 351 NLRB 1234, 1234–1235 (2007). In order to avoid unnecessary litigation and injustice to the parties,3 we enter our re-adjudicated order nunc pro tunc “conflicts instead were discovered by the DAEO and the Inspector Gen- eral, and then were publicly disclosed by the Board when it issued notices to show cause in this case and others.” Id., slip op. at 1 (footnotes omit- ted). See also id. at 7 & fn. 34 (describing findings of Inspector General). Here, as in Exxon Mobil, we reject our dissenting colleague’s benign characterization of the circumstances underlying today’s decision, which involved misconduct that the Board should take seriously. 3 The Board has previously entered orders nunc pro tunc in numerous situations, including amending a Board certification to exclude supervi- sors who were previously included in the certified unit (see, e.g., Western Cartridge Co., 55 NLRB 1171, 1172–1173 (1944)) and to affirm ap- pointments and other administrative actions entered by the Board when 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD to February 5, 2021. The subsequent actions by the Board4 and the parties therefore need not be disturbed by today’s order. We thus avoid any potential to unravel the parties’ labor-relations progress that followed (and per- haps resulted from) the Board’s February 5 and May 25 orders. Because we leave matters exactly where they were, no party can be aggrieved by our order. See National Labor Relations Act, Sec. 10(f), 29 U.S.C. §160(f). Our col- league’s dissent is entirely academic. The result here is the same in substance as it would be if (as our colleague favors) we did not vacate the February 5 order. Insofar as the dissent reflects our colleague’s disagreement with the decision in Exxon Mobil Research & Engineering, supra, where he also dissented, the Board has already addressed his arguments. 371 NLRB No. 128, slip op. at 1 fn. 2, 4 & fn. 21, 5 fn. 22–23, 6–7 & fn. 33–34. ORDER The Board’s February 5, 2021 order granting review and remanding is vacated and set aside. Having re-adju- dicated the Employer/Petitioner’s November 11, 2020 Re- quest for Review de novo, we affirm the Board’s February 5, 2021 order and enter our re-adjudicated order nunc pro tunc to February 5, 2021. Dated, Washington, D.C. October 24, 2022 ______________________________________ Lauren McFerran, Chairman ______________________________________ Gwynne A. Wilcox, Member (SEAL) NATIONAL LABOR RELATIONS BOARD the Board was without a quorum. See, e.g., Professional Transportation, Inc., 362 NLRB 534, 535 fn. 7 (2015). Additionally, United States Su- preme Court and federal court precedent broadly supports entering a judgment or order nunc pro tunc where an act of the court, rather than the parties’ conduct, caused delay in rendering a judgment or decree and justice may require that the judgment or decree be entered nunc pro tunc based on the particular circumstances of a case. Mitchell v. Overman, 103 U.S. 62, 64–65 (1880) (“[W]here the delay in rendering a judgment or a decree arises from the act of the court, that is, where the delay has been caused either for its convenience, or by the multiplicity or press of business, either the intricacy of the questions involved, or of any other cause not attributable to the laches of the parties, the judgment or the decree may be entered retrospectively, as of a time when it should or might have been entered up . . . . A nunc pro tunc order should be granted or refused, as justice may require in view of the circumstances of the MEMBER RING, dissenting. More than 2 years ago, the Employer had a disagree- ment with the Union about the continued inclusion of pharmacy Team Leaders in a bargaining unit covering 33 Chicago-area CVS pharmacies. To resolve that dispute, the Employer filed a unit clarification petition asserting that the Team Leaders were statutory supervisors. After the issuance of a series of orders by the Regional Director and the Board, the Regional Director eventually clarified the unit to exclude the Team Leaders on July 8, 2021.1 Both parties have accepted that determination and have even negotiated a tentative successor collective-bargain- ing agreement in reliance on it. No one questions the validity of the Regional Director’s dispositive July 8 order clarifying the unit. An earlier or- der in this case issued by the Board on February 5, how- ever, was decided by a panel that included former Member Emanuel at a time when he held a disqualifying financial interest in CVS. On January 7, 2022, the Board issued a Notice to Show Cause (NSC) why that order should not be vacated.2 A majority of the Board stated in the NSC that “[t]he presumptively appropriate remedy for Member Emanuel’s unlawful participation in this case is to vacate the February 5, 2021 and May 25, 2021 orders and to re- adjudicate the November 5, 2020 Request for Review de novo.” The NSC also purported to offer “any party seek- ing to show cause why the Board’s orders should not be vacated” the opportunity to do so. The Employer and Union both filed responses urging the Board not to vacate. My colleagues vacate the Febru- ary 5 order all the same, citing their intervening decision in ExxonMobil Research & Engineering Co., 371 NLRB No. 128 (2022), for the proposition that vacatur “is the proper remedy . . . where a violation of 18 U.S.C. § 208(a) is established.” In other words, vacatur is no longer merely “presumptively appropriate,” as the NSC stated, but is instead, for my colleagues, automatic. So much for the NSC’s promise of an opportunity to show why the particular case.”). See also Transamerica Ins. Co. v. South, 975 F.2d 321, 326 fn. 2 (7th Cir. 1992) (citing cases supporting proposition that a nunc pro tunc order may be entered where the court’s delay prejudices the parties). 4 It is therefore unnecessary to vacate the May 25 order, issued by the Office of the Executive Secretary, which would not have issued but for the February 5 order in which Member Emanuel participated. We have now cured the defect in the February 5 order by vacating and readjudi- cating it; by entering today’s order nunc pro tunc to February 5, any prior defect in the May 25 order has also been eliminated. 1 All dates hereinafter are in 2021 unless otherwise noted. 2 The NSC also directed the parties to show cause why a second, re- lated order issued on May 25, 2021, should not be vacated. As discussed below, the majority declines to vacate that order or any of the subsequent orders in this case. CVS/PHARMACY 3 disputed orders should not be vacated.3 My colleagues go on to issue a new order substantively the same as the va- cated order, which they enter nunc pro tunc, that is, giving it retroactive effect to the date of the now-vacated order. I dissented from the decision to vacate in ExxonMobil Re- search & Engineering, and I do so here as well. Facts Early in 2020, Member Emanuel’s financial broker ac- quired shares of the Health Care Select Sector SPDR Fund ETF (XLV) (the Fund) for Member Emanuel’s account. The Fund is a sector mutual fund focused on the health care sector. On February 5, the Board issued an Order Granting Re- view and Remanding in this case in which Member Eman- uel participated. On May 25, the Office of the Executive Secretary issued an order granting the Acting Regional Di- rector’s request that the Board transfer the Employer/Peti- tioner’s Request for Review to the Regional Director for reconsideration. Also in 2021, Member Emanuel timely filed with the Board’s Designated Agency Ethics Official (DAEO) his annual government-required financial disclo- sure form, which disclosed his ownership of shares in the Fund. After determining that the Fund owned shares in entities that were party to an NLRB case, the DAEO re- ferred the matter to the Board’s Inspector General (IG). On August 26, the IG issued a report to the DAEO in which he determined that Member Emanuel’s interest in the Fund exceeded the $50,000 exemption threshold set by the Office of Government Ethics (OGE),4 that the Fund owned shares in CVS at a time when Member Emanuel participated in this case, and that, by participating in this case, Member Emanuel had therefore violated 18 U.S.C. § 208(a) and one of its implementing regulations, 5 C.F.R. § 2640.201(b)(2)(i).5 As stated in that report, Member Emanuel denied that he had any knowledge of the Fund’s 3 I dissented in part from the NSC. For the reasons stated there, I agreed that the parties should have an opportunity to be heard before the Board decided whether to vacate, but dissented from the majority’s premature adoption of a presumption in favor of vacatur. CVS Phar- macy, Case 13-UC-226228, slip op. at 3–4 (2022) (unpublished) (Mem- ber Ring, dissenting in part). As I explained there, the Board should have given the parties an opportunity to be heard before determining what standard to apply. Had the Board followed this approach, my colleagues could have avoided the appearance of having prejudged the applicable standard in the NSC only to abandon it in ExxonMobil Research & En- gineering and here. 4 According to OGE regulations, an “employee may participate in a particular matter affecting one or more holdings of a sector mutual fund or a sector unit investment trust where the disqualifying financial interest in the matter arises because of ownership of an interest in the fund or the unit investment trust and the aggregate market value of interests in any sector fund or funds and any sector unit investment trust or trusts does not exceed $50,000.” 5 C.F.R. § 2640.201(b)(2)(i). As of April 2021, Member Emanuel’s holdings in the Fund were valued at $242,660. individual holdings at the time he participated in this case. There has been no finding, nor is there any evidence, that he did have actual knowledge of those holdings. Instead, the IG report finds constructive knowledge based on Member Emanuel’s having received monthly statements showing his investment in the Fund, together with a duty to monitor his investments.6 Because there is no evidence that the monthly statements Member Emanuel received in- cluded details of the Fund’s underlying holdings, such monitoring would have required Member Emanuel to de- termine the Fund’s holdings by, for example, checking its website on a daily basis. The IG referred the matter to the Office of the United States Attorney for the District of Columbia. That office declined prosecution. Thereafter, the DAEO determined that Member Emanuel should not have participated in the adjudication of this case. On January 7, 2022, the Board issued a Notice to Show Cause in which it notified the par- ties of the DAEO’s determination. As noted above, the NSC stated that vacatur of the February 5 and May 25 or- ders was the “presumptively appropriate remedy,” and it directed “any party seeking to show cause why the Board’s Decision and Order should not be vacated, and why the Board should not re-adjudicate this case,” to file a response to the NSC. I agreed with the issuance of the NSC, but I dissented from the majority’s adoption of a presumption in favor of vacatur prior to briefing by the parties. The Employer and the Union filed responses op- posing vacatur. Discussion For the reasons fully explained in my dissenting opinion in ExxonMobil Research & Engineering, 371 NLRB No. 128, slip op. at 8–15, the Board should decide whether to vacate a decision based on a participating Board member’s financial conflict of interest using the “harmless error” 5 A redacted copy of the IG’s report is attached to the Board’s January 7, 2022 Notice to Show Cause in this case. 6 The IG report states: Member Emanuel was provided the necessary information by his financial advisor to monitor his purchases. Given the duty to monitor his financial investments purchases and the information that was provided to him monthly, Member Emanuel meets the knowledge requirement for 18 U.S.C. § 208. Having certified that he is monitoring his investment purchases, he cannot now disavow knowledge when it becomes apparent that he acted in matters that he had a financial interest. Also, even though indi- vidual shareholders do not control a sector fund’s portfolio, they are charged with having knowledge of the holdings. See, OGE Informal Advisory Letter 93X37 (O.G.E), 1993 WL 721257. While I accept the IG’s findings, they do not resolve the issue of whether Member Emanuel had actual knowledge that the Fund held CVS shares at the time he participated in this case. Based on the information before us, an inference is warranted that he did not. 4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD standard courts apply when determining whether to vacate a decision based on a federal judge’s financial conflict of interest. See Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847 (1988). In Liljeberg, the Supreme Court held that vacatur is not automatically required under those circumstances. Rather, “[a]s in other areas of the law, there is surely room for harmless error committed by busy judges who inadvertently overlook a disqualifying circumstance. There need not be a draconian remedy for every violation of § 455(a) [the judicial recusal statute].” Id. at 862. Vacatur has costs as well as benefits, and un- necessary vacaturs might well cause the public to “lose confidence in the judicial process . . . because the parties and the courts would be forced to relitigate the case even though the proceedings leading to those judgments seemed completely fair.” United States v. Cerceda, 172 F.3d 806, 816 (11th Cir. 1999) (en banc). As the Court recognized, however, “[i]t would be equally wrong . . . to adopt an absolute prohibition against any relief in cases involving forgetful judges.” Liljeberg, 486 U.S. at 862. Precedent applying the Liljeberg standard is the only prec- edent that squarely addresses whether a decision should be vacated based on a disqualifying financial interest. In determining whether a decision shouldbe vacated, the Court held that it is appropriate to consider the risk of injustice to the parties in the particular case, the risk that the de- nial of relief will produce injustice in other cases, and the risk of undermining the public’s confidence in the judicial process. We must continuously bear in mind that “to perform its high function in the best way ‘justice must satisfy the appearance of jus- tice.’” Liljeberg, 486 U.S at 864 (quoting In re Murchison, 349 U.S. 133, 136 (1955)); see also Shell Oil Co. v. United States, 672 F.3d 1283, 1292–1293 (Fed. Cir. 2012) (ob- serving that “mandatory recusal does not require manda- tory vacatur,” citing Liljeberg); Polaroid Corp. v. East- man Kodak Co., 867 F.2d 1415, 1420 (Fed. Cir. 1989) (va- catur not appropriate). Regarding the risk of injustice to the parties in this case, “the party seeking vacatur bears the burden of proving that potential bias on the part of the judge presented a risk of injustice to it.” United States v. Cerceda, 172 F.3d at 813. Relevant to this inquiry is the seriousness of the violation and whether the party seeking vacatur has pointed to par- ticular circumstances that may indicate a risk of injustice to that party if the decision is not vacated. Id. Here, the violation was an inadvertent error: when he participated in this case, Member Emanuel did not have actual knowledge that the Fund held shares in CVS. Moreover, no party seeks vacatur. Indeed, both parties oppose it. The Employer notes that “both parties have long since put the exclusion of Team Leaders from the bargaining unit behind them.” Likewise, the Union aptly observes that “[i]n the absence of any present dispute as to the status of this classification, further proceedings before the Board in this case would cause needless expense for the parties and would not serve the Board’s interest in the efficient ad- ministration and effectuation of the Act.” Under these cir- cumstances, there is absolutely no risk of injustice to any- one if the decision is not vacated. To the contrary, the parties have clearly shown a risk of injustice if the decision is vacated. They relied on the Re- gional Director’s exclusion of the Team Leaders from the unit in negotiating a successor collective-bargaining agreement, and vacatur reopens that issue. Cf. Liljeberg, 486 U.S. at 868–869 (considering whether it would be “unfair to deprive the prevailing party of its judgment,” and finding that “neither [of the prevailing parties] ha[d] made a showing of special hardship by reason of their re- liance on the original judgment”). Detrimental reliance is an especially weighty consideration when decisions of the National Labor Relations Board are involved. Unlike a court adjudicating a dispute between private litigants in a civil action, the Board adjudicates public rights in the pub- lic interest. National Licorice Co. v. NLRB, 309 U.S. 350, 362 (1940) (“The Board acts in a public capacity to give effect to the declared public policy of the Act. . . .”). Moreover, one of the Board’s primary responsibilities un- der the Act is to foster labor relations stability. Colgate- Palmolive-Peet Co. v. NLRB, 338 U.S. 355, 362–363 (1949) (“To achieve stability of labor relations was the pri- mary objective of Congress in enacting the National Labor Relations Act.”); NLRB v. Appleton Elec. Co., 296 F.2d 202, 206 (7th Cir. 1961) (A “basic policy of the Act [is] to achieve stability of labor relations.”). It would undermine, rather than foster, this basic policy of the Act to vacate a Board decision or order where, as here, the parties have detrimentally relied on it. An evaluation of the seriousness of Member Emanuel’s violation should consider that financial conflict of interest in light of the comparative insignificance of the issue this case presents: whether to exclude the Team Leader clas- sification from the bargaining unit at 33 Chicago-area CVS pharmacies out of a total of more than 10,000 CVS pharmacies nationwide. Moreover, the disputed orders merely related to whether the issue was timely raised. The Team Leaders’ exclusion from the unit was resolved on the merits in a subsequent decision by the Regional Direc- tor in which Member Emanuel played no part. There has been no finding, nor is there any reason to believe, that any of the Board’s orders in this case had any material CVS/PHARMACY 5 effect on CVS’s finances, the value of its stock, or the value of Member Emanuel’s holdings in the Fund. While Member Emanuel’s holdings in the Fund were fairly sub- stantial, only a portion of the Fund’s holdings were in shares of CVS.7 Moreover, the OGE exempts holdings in a diversified mutual fund (as opposed to a sector mutual fund such as the Fund) regardless of their size.8 Thus, Member Emanuel could have held shares in a diversified mutual fund with larger holdings of CVS stock than the Fund held, and no financial conflict would have been pre- sented at all, even if Member Emanuel knew that the di- versified mutual fund held CVS stock at the very time he participated in this case. I do not question the OGE’s de- termination that sector fund holdings pose conflict-of-in- terest concerns that are not presented by diversified mu- tual fund holdings, nor is there any dispute that Member Emanuel’s holdings exceeded the exemption threshold that the OGE has established for sector mutual funds. But the seriousness of the violation is a relevant consideration in determining whether to vacate a decision because the adjudicator violated financial conflict-of-interest rules, and the foregoing considerations demonstrate that this fac- tor does not support vacatur here. There is also no valid basis for finding that injustice in other cases would result from failing to vacate the Febru- ary 5 and May 25 orders. To be sure, vacatur would “en- courag[e] a judge or litigant to more carefully examine possible grounds for disqualification and to promptly dis- close them when discovered.” Liljeberg, 486 U.S. at 868. But Liljeberg and subsequent precedent make clear that this consideration is not determinative where, as here, other considerations do not support vacatur. See, e.g., United States v. Cerceda, 172 F.3d at 815. In applying this Liljeberg factor, the Board should also consider that the criminal penalties for violating 18 U.S.C. § 208(a) al- ready create a powerful incentive for Board members to carefully examine their own financial interests as well as those imputed to them under that statute. This is evident from the fact that the handful of cases involving Member Emanuel are apparently the first instance in the history of the Agency in which a member of the Board participated in a case despite a disqualifying financial interest. Improper participation is also deterred by the obligation to file financial disclosure reports, which is, after all, how the violation at issue here was detected. Moreover, the 7 The record does not show the percentage of the Fund’s holdings that CVS comprised at the time Member Emanuel participated in this case. But CVS Health Corporation comprised 2.83 percent of the Fund’s assets as of September 21, 2022. 8 See 5 C.F.R. § 2640.201(a). 9 Contrary to my colleagues, a finding of harmless error is not a “be- nign characterization of the circumstances underlying today’s decision,” IG’s now-public determination that Member Emanuel vi- olated 18 U.S.C. § 208(a) also supports a finding that va- catur is unwarranted. See United States v. Cerceda, 172 F.3d at 815 (vacatur unwarranted where adoption of pro- cedures for identifying conflicts and public finding that judge violated 28 U.S.C. § 455 “should sufficiently im- press upon judges the need to identify and disclose poten- tial grounds for disqualification”). In light of these com- pelling deterrents, there is no reason to believe that leaving the February 5 and May 25 orders intact would pose a risk of injustice in other cases. Finally, the risk of undermining public confidence in the Board’s processes is minimal, given that there is no evi- dence or finding that Member Emanuel knew of the dis- qualifying financial interest at the time he participated in this case. Member Emanuel committed an inadvertent mistake that could not reasonably have affected the Board’s order or the decision-making process. See Liljeberg, 486 U.S. at 859 (stating that a “judge’s lack of knowledge . . . may bear on the question of remedy”). Moreover, that mistake only came to light because Mem- ber Emanuel timely disclosed his interest in the Fund, in full compliance with his financial disclosure obligations, when he filed his financial disclosure form revealing his interest in the Fund. The Supreme Court’s observation that “there is surely room for harmless error committed by busy judges who inadvertently overlook a disqualifying circumstance” precisely fits this case. Liljeberg, 486 U.S. at 862.9 For all these reasons, vacatur is unwarranted here. In- deed, the public might well “lose confidence in the judicial process if the judgments were vacated, because the parties and the courts would be forced to relitigate the case even though the proceedings leading to those judgments seemed completely fair.” United States v. Cerceda, 172 F.3d at 816. My colleagues do not dispute that vacatur is unwar- ranted under Liljeberg. Nor do they dispute that the par- ties have detrimentally relied on the Board’s prior orders in this case. Indeed, the majority implicitly acknowledges that simply vacating those orders would risk “unnecessary litigation and injustice to the parties.” But they vacate the February 5 order all the same. In the absence of any stated limitation on the majority’s holding that vacatur “is the proper remedy . . . where a violation of 18 U.S.C. § 208(a) nor does it minimize the fact that Member Emanuel committed an ethics violation, any more than the Department of Justice trivialized those in- terests by declining prosecution in this matter or the Supreme Court triv- ialized ethical breaches by recognizing the possibility of harmless error in Liljeberg. 6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD is established,” the majority is apparently willing to vacate any decision in which a Board member had a disqualifying conflict of interest regardless of the cost or injustice to the parties of doing so. No precedent or valid justification supports this blanket refusal to consider the legitimate in- terests of the parties. In an effort to address the manifest injustice that would otherwise result from their vacatur, the majority re-adju- dicates the vacated February 5 order de novo without fur- ther briefing, reaches the same result as the vacated or- der—which, puzzlingly, they incorporate by reference de- spite having vacated it—and enters a new order granting the Employer’s November 11, 2020 Request for Review, reinstating the petition, and remanding the case to the Re- gional Director. But they enter this order nunc pro tunc, with retroactive effect to February 5, asserting that “[t]he subsequent actions by the Board and the parties therefore need not be disturbed by today’s order.” The majority next holds that the May 25 order issued by the Office of the Executive Secretary that was also the subject of the NSC need not be vacated because “by entering today’s or- der nunc pro tunc to February 5, any prior defect in the May 25 order has also been eliminated.” And the majority concludes by stating “[w]e thus avoid any potential to un- ravel the parties’ labor-relations progress that followed (and perhaps resulted from) the Board’s February 5 and May 25 orders.” Even assuming that a nunc pro tunc order is procedur- ally proper in these circumstances,10 my colleagues are simultaneously holding that the February 5 order must be given no effect because Member Emanuel participated in it, while nevertheless giving it effect in at least two ways. First, my colleagues incorporate the February 5 order by reference in their decision—even though it has now been vacated and even though Member Emanuel participated in it. Second, my colleagues enter their order retroactively to February 5, a date that has significance only because that is the date on which the Board panel, including Mem- ber Emanuel, issued the now-vacated-yet-mysteriously- resuscitated order. Moreover, my colleagues also seem to be saying that even though they have vacated the February 5 order, and even though all of the Board’s subsequent ac- tions flowed from that order, the parties have no right to 10 Cf. Roman Catholic Archdiocese of San Juan v. Acevedo, 589 U.S. __, 140 S. Ct. 696 (2020) (per curiam): Federal courts may issue nunc pro tunc orders, or “now for then” orders, Black’s Law Dictionary, at 1287, to “reflect[ ] the reality” of what has already occurred, Missouri v. Jenkins, 495 U. S. 33, 49 (1990). “Such a decree presupposes a decree allowed, or or- dered, but not entered, through inadvertence of the court.” Cuebas y Arredondo v. Cuebas y Arredondo, 223 U. S. 376, 390 (1912). Put colorfully, “[n]unc pro tunc orders are not some Orwellian vehicle for revisionist history—creating ‘facts’ that never contest today’s order or any of the subsequent proceedings that could not have occurred in the absence of the order the majority says must be vacated. The validity of this preemptive curtailment of the parties’ due process rights is dubious at best, even if the parties choose not to chal- lenge it.11 But the point is that the majority recognizes that the February 5 order must be given effect to avoid injus- tice. The obvious conclusion to draw from that fact is that the order therefore should not be vacated in the first place. That is what the parties ask of us, after all. CONCLUSION Member Emanuel should have disqualified himself from participating in this case, and his participation was an ethics violation. But the question presented here is whether that violation should be remedied by vacating the Board’s prior orders in this case. In my view, the major- ity’s decision plainly demonstrates the wisdom of the Su- preme Court’s harmless error standard and the flaws of the automatic vacatur standard the majority announced in ExxonMobil Research & Engineering. The majority’s ap- plication of the ill-conceived ExxonMobil standard is par- ticularly unwarranted here; indeed, it verges on absurdity. It results in the vacatur of an order that is a dead letter as far as the parties are concerned, disregarding their united plea that the Board not take that step. It also requires the majority to engage in procedural gymnastics to avoid the injustice that otherwise would follow if their standard were faithfully applied. And it ignores the potential injury to public confidence in the Board of devoting agency re- sources to a decision that has no practical effect on the parties’ interests, other than to reveal to them that respond- ing to the Notice to Show Cause was mostly an exercise in futility. For these reasons and those explained above, I respectfully dissent. Dated, Washington, D.C. October 24, 2022 ______________________________________ John F. Ring, Member NATIONAL LABOR RELATIONS BOARD occurred in fact.” United States v. Gillespie, 666 F. Supp. 1137, 1139 (ND Ill. 1987). Put plainly, the court “cannot make the rec- ord what it is not.” Jenkins, 495 U. S., at 49.”). 140 S. Ct. at 170–171 (alteration in original). 11 Contrary to the majority, there is nothing “academic” about vacat- ing a Board decision, even if the decision to do so is unlikely to be chal- lenged. Rather, the Board should vacate one of its prior decisions only if there are compelling reasons to do so. As shown, that is not the case here.