U.S. Supreme Court Strikes Down Appointment of Former NLRB Acting General Counsel

by Littler

On March 21, 2017, the U.S. Supreme Court affirmed the D.C. Circuit’s holding that Lafe Solomon, who was appointed by former President Barack Obama to serve as acting general counsel to the NLRB in June 2010 when the prior general counsel resigned his position, was prohibited by the Federal Vacancies Reform Act (FVRA) from continuing to serve in that role following his January 5, 2011 nomination to the general counsel position. The decision in NLRB v. SW General does not invalidate all NLRB decisions issued during Solomon’s tenure, and it is not comparable in scope to the Court’s 2014 decision in Noel Canning. Rather, the Court’s holding applies only to unfair labor practice complaints issued between January 5, 2011 and November 4, 2013 by Solomon or pursuant to his authorization, and only if the employer timely raised a challenge to Solomon’s appointment under the FVRA.

Background on the FVRA

Article II of the U.S. Constitution requires that the President obtain “the Advice and Consent of the Senate” before appointing “Officers of the United States.”  The NLRB general counsel is one such position in that it requires Presidential  appointment and Senate confirmation (a "PAS office"). The Federal Vacancies Reform Act of 1998 provides the President with the authority to appoint acting officers to temporarily carry out the duties of a vacant PAS position. The current version of the FVRA permits three categories of government officials to perform acting service in a vacant office, including “first assistants” to the open office, an individual who already serves in a PAS office, and a person who has served in a senior position in that agency.

However, the FVRA also makes certain individuals ineligible for acting service. Subsection (b)(1) states: “Notwithstanding subsection (a)(1), a person may not serve as an acting officer for an office under this section” if the President nominates him for the vacant PAS office and, during the 365-day period preceding the vacancy, the individual “did not serve in the position of first assistant” to that office or “served in the position of first assistant to the office of such officer for less than 90 days.”

Lafe Solomon's Tenure

In June 2010, NLRB General Counsel Ronald Meisburg vacated his position and President Obama appointed Lafe Solomon to become the NLRB’s acting general counsel. On January 5, 2011, Obama nominated Solomon to become the NLRB’s general counsel on a permanent basis. The Senate did not take action on Solomon’s nomination and returned it to the President when the legislative session expired. The President re-submitted Solomon’s name for consideration in May 2013, but later withdrew it and nominated Richard F. Griffin, Jr. Griffin was confirmed as general counsel of the NLRB in October 2013. Thus, from June 2010 through Griffin’s confirmation, Solomon served as the NLRB’s acting general counsel.

The matter before the Supreme Court in SW General arose in January 2013, when an NLRB regional director, exercising authority on Solomon’s behalf, issued a complaint against respondent SW General, Inc. The employer sought review in the D.C. Circuit arguing that the complaint was invalid because, under subsection (b)(1) of the FVRA, Solomon could not perform the duties of general counsel to the NLRB after having been nominated to fill that position. On appeal, the D.C. Circuit agreed with the employer’s FVRA objection and ruled that Solomon had become ineligible to continue serving as acting general counsel as of January 5, 2011, the date on which the President nominated him as general counsel.

The Supreme Court affirmed the D.C. Circuit's decision and held that subsection (b)(1) of the FVRA prevents a person who has been nominated to fill a vacant PAS office from performing the duties of that office in an acting capacity. In support of this conclusion, the Court held that the plain language of the FVRA provides that subsection (b)(1) applies to any “person,” which has an expansive meaning and applies to all of the FVRA.

Implications of the Court’s Decision

In its opinion, the D.C. Circuit noted that it addressed the FVRA objections because the company raised the issue in its exceptions to the administrative law judge's (ALJ) decision and that its decision did not automatically render all of Solomon’s actions as acting general counsel void ab initio, or “from the beginning.” The court expressed “doubt that an employer that failed to timely raise an FVRA objection will enjoy the same success” or that its decision would “retroactively undermine a host of NLRB decisions” because it would only apply to litigants who raised the FVRA argument before the Board.

Thus, the Supreme Court’s decision in SW General is narrow and does not invalidate all of Solomon’s actions as acting general counsel. Rather, only those cases in which FVRA defenses were timely raised before the Board in response to unfair labor practice complaints issued between January 5, 2011 and November 4, 2013 are potentially “voidable.” Furthermore, after he was confirmed, current NLRB General Counsel Griffin utilized a provision of the FVRA to ratify actions that Solomon authorized, so Solomon’s actions in those cases where a timely FVRA challenge was raised may have been effectively corrected by Griffin.

Employers alleged to have committed unfair labor practices in complaints issued between January 5, 2011 and November 4, 2013, should raise an FVRA defense if possible, assuming the matter has not already been decided by the Board. However, the Supreme Court’s decision does not invalidate all Board actions in unfair labor practice proceedings during Solomon’s tenure, nor does the case permit employers to retroactively challenge Board actions under Solomon’s tenure if an FVRA defense was not timely raised and preserved. 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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