SCOTUS: NLRB's Acting GC was unlawfully appointed

Hundreds of NLRB decisions could be at risk after the Supreme Court's decision that for three years Lafe Solomon served improperly as the NLRB's Acting General Counsel. NLRB v. SW General US Supreme Ct 03/21/2017) (6-2) [Opinion text]. The NLRB's decision that SW General committed an unfair labor practice was vacated because the ULP complaint was issued at a time when Solomon lacked authority to issue the complaint.

NLRB decisions issued between January 5, 2011 and November 4, 2013 could now be at risk. The decisions are not automatically voided, but could be nullified if the losing party (usually an employer) properly raised and preserved an objection in proceeding before an ALJ or at the Board level. I assume the 180 days statute of limitations has run on these cases, so some folks are going to get a "get out of jail free" card.

When Ronald Meisburg resigned as General Counsel in June 2010, the President appointed Solomon as Acting GC. So far so good. About six months later – January 5, 2011 – the President nominated Solomon to be permanent GC, and sent his name to the Senate for confirmation. Solomon never got confirmed by the Senate. But he continued serving as Acting GC until the Senate confirmed Richard Griffin as permanent GC on November 4, 2013.

The problem was that the Federal Vacancies Reform Act (FVRA) is pretty specific. Subsection (b)(1) of the FVRA prevents a person who has been nominated to fill a vacant Presidential-appointment-and-Senate-confirmation office from performing the duties of that office in an acting capacity.

The Court rejected the government's argument that "we've always done it this way," saying:

"The Board contends that legislative history, purpose, and post-enactment practice uniformly show that subsection (b)(1) applies only to first assistants. The text is clear, so we need not consider this extra-textual evidence. * * * In any event, the Board’s evidence is not compelling."

The Court also rejected the argument that FVRA Subsection (b)(1) should be read as meaning that only first assistants are barred from serving in an acting position after being nominated for the permanent position.

As for the two dissenters, this is a good summary:

"Congressional silence in the face of a decade-plus practice of giving subsection (b)(1) a narrow reach casts serious doubt on the broader interpretation. It indicates that Congress, like the Executive Branch, interpreted subsection (b)(1) in line with its text to reach only first assistants to the vacant office serving pursuant to subsection (a)(1)."

[For recent decisions and pending employment law cases, see Supreme Court Watch.]


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