Supreme Court: NLRB Official Couldn’t Be Acting General Counsel and Nominee Simultaneously

Employers that have challenged Solomon’s authority may have cases reheard

By Allen Smith, J.D. Mar 23, 2017
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An acting National Labor Relations Board (NLRB) general counsel did not have the authority to continue in that role once the president nominated him to be confirmed by the Senate to be general counsel, the U.S. Supreme Court ruled March 21.

As a result, companies that have objected to the authority of Acting General Counsel Lafe Solomon to continue in that capacity after he was nominated can challenge any unfair labor practice charge issued against them following his nomination January 2011 until he stepped down October 2013, according to Phil Wilson, president and general counsel with the Labor Relations Institute in Broken Arrow, Okla.

While the current general counsel, Richard Griffin Jr., is likely to rubber-stamp Solomon's rulings, Griffin steps down in November and his Republican successor probably will reach more employer-friendly conclusions, Wilson noted. Employers that want to challenge their unfair labor practice complaints may want to delay their cases from being heard, if possible, until after November, he recommended.

Complaint Under Solomon's Tenure Challenged

This case arose from a company that fought an unfair labor practice charge by challenging the legitimacy of Solomon's tenure as acting general counsel.

In January 2013, an NLRB regional director, exercising authority on behalf of Solomon, issued a complaint alleging that SW General, which provides ambulance services to Arizona hospitals, had improperly failed to pay certain bonuses to long-term employees. An administrative law judge concluded that SW General had committed unfair labor practices and the NLRB agreed.

[SHRM members-only HR Q&A: What is an unfair labor practice by management?]

But SW General filed a petition for review in the D.C. Circuit, which ruled that the unfair labor practices complaint was invalid because Solomon could not, after having served as acting general counsel, legally perform the duties of general counsel once he was nominated to fill that position.

In its March 21 decision, the Supreme Court affirmed, holding that Solomon, who began serving as acting general counsel June 2010, was not lawfully serving in this capacity once President Barack Obama nominated him in January 2011 to serve as the NLRB's general counsel, pending Senate confirmation. Solomon served as acting general counsel until October 2013 and the Senate never confirmed his nomination, which Obama ultimately withdrew.

In a 6-2 decision, Chief Justice John Roberts Jr. wrote that the Federal Vacancies Reform Act of 1998 (FVRA) prohibits an acting official in a position requiring Senate confirmation from serving in that role once he or she is nominated by the president to fill the position because the clear text of the statute forbids an acting official from continuing in this capacity. The FVRA was passed partly to prevent presidents from avoiding Senate confirmation for certain positions.

Common Practice Argument Rejected

The Supreme Court wasn't persuaded by the board's argument that the common practice after the FVRA was enacted was that acting officers could continue in that role after they became nominees. Three presidents have, without congressional objection, submitted the nominations of 112 individuals other than first assistants who were serving as acting officers, the NLRB argued. (The board conceded that first assistants could not continue to serve as acting officials after they'd been nominated.) The board asserted that this historical practice is entitled to "significant weight."

The high court disagreed, saying, "The 112 nominations that the board cites make up less than 2 percent of the thousands of nominations to positions in executive agencies that the Senate has considered in the years since [FVRA's] passage."

Because Solomon's appointment to acting general counsel became invalid once he was nominated to fill this role, unfair labor practices issued after his nomination were invalid, the Supreme Court concluded. The case is NLRB v. SW General Inc., No. 15-1251.

Original Argument

In a dissent joined by Justice Ruth Bader Ginsburg, Justice Sonia Sotomayor stated that nothing in the legislative history of the FVRA indicates that the law was intended to have a broad prohibition on acting service by all nominees. 

"This case is a reminder that good lawyering matters," said Corey Goerdt, an attorney with Fisher Phillips in Atlanta. "The employer's counsel in this case made a novel legal argument—one that conflicted with years of generally unquestioned past practice and that had absolutely nothing to do with the facts of alleged unfair labor practice. Without that creative legal approach, the employer would have been stuck with an NLRB decision finding it responsible for an unfair labor practice." 

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