April 20, 2021

Volume XI, Number 110

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Supreme Court Reins in Administrative Overreaching of NLRB

On March 21, the U.S. Supreme Court ruled that one-time acting National Labor Relations Board (NLRB) General Counsel Lafe Solomon improperly served as the agency’s Acting General Counsel while he awaited U.S. Senate confirmation to a permanent appointment, upholding a U.S. Court of Appeals for the D.C. Circuit ruling that most of his three-year tenure violated the Federal Vacancies Reform Act (FVRA). Congress passed the FVRA in 1998 to tighten control over the presidential appointments process. The FVRA requires the executive branch departments and agencies to report to Congress and Government Accountability Office (GAO) information about the temporary filling of vacant executive agency positions that require presidential appointment with Senate confirmation.

A career NLRB attorney, Lafe Solomon was named the NLRB’s Acting General Counsel on June 21, 2010 by President Obama after Ronald Meisburg’s resignation in June 2010. Six months into Solomon’s service, in January 2011, Obama nominated him to be the agency’s General Counsel on a permanent basis. Solomon’s nomination was returned by the Senate, and Obama later nominated Richard Griffin, who was confirmed in the fall of 2013. But, in the interim, Solomon ended up serving more than three years as the labor board’s chief prosecutor, issuing complaints and litigating unfair labor practice claims against employers (and occasionally unions).

The lower federal appeals court had concluded that Solomon became ineligible to serve as the NLRB’s Acting General Counsel under a provision of the FVRA that prohibits a person from being both the acting officer and the permanent nominee. The D.C. Circuit vacated an NLRB decision that ambulance company SW General Inc., which operates as Southwest Ambulance, violated the National Labor Relations Act based on the fact that the underlying complaint was issued by Solomon at a time that he was not authorized by law to issue that complaint. In appealing the D.C. Circuit’s ruling to the highest court, the NLRB asked the justices to consider the question of whether the FVRA’s precondition on service in an acting capacity by a person nominated to permanently fill a vacant office applies only to first assistants who assume the office under the law’s so-called default rule, or whether the FVRA also limits acting service by officials who assume acting responsibilities under two other subsections of the statute.

The NLRB argued to the Supreme Court that Solomon was never a first assistant to Meisburg and never assumed the duties of General Counsel under the FVRA’s “default provision,” which says that the first assistant to the outgoing officer takes over the job in an acting capacity in the event of a vacancy. As a result, the prohibition against Solomon serving while also being the permanent nominee didn’t apply. The agency also argued that Solomon assumed the Acting General Counsel role under a separate FVRA provision that allows the President to fill an open agency slot by appointing a person who has already held a high-level position within that agency. In a 6-2 vote, the justices upheld the D.C Circuit’s August 2015 ruling that Solomon served in violation of the FVRA, holding that “[s]ubsection (b)(1) [of the FVRA] prohibited Solomon from continuing his service as acting general counsel once the president nominated him to fill the position permanently”.

As we previously reported on this case in August of 2015, when the decision of the D.C. Circuit came out in SW General v. NLRB, this ruling does not mean that all complaints issued by the Acting General Counsel between January 5, 2011 and November 4, 2013 are void. However, if the employer raised an FVRA violation as a defense before the Administrative Law Judge or as an exception to adverse ALJ findings before the NLRB, then under this ruling, the complaint against it likely would be declared void. In most cases, that should end the matter, as the National Labor Relations Act’s six-month statute of limitations should prohibit the refiling of a defective, voided complaint.

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© Copyright 2021 Squire Patton Boggs (US) LLPNational Law Review, Volume VII, Number 80
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About this Author

Daniel B. Pasternak Labor & Employment Attorney Squire Patton Boggs Phoenix, AZ
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Dan Pasternak works with employers to solve workplace problems. Sometimes that involves helping develop, implement and enforce effective and business-sensible employment and traditional labor relations policies and practices. Other times, it involves representing employers in high-stakes litigation matters.

For more than two decades, Dan has advised employers in managing one of their most important assets – their human resources. From leading workplace investigations and crafting executive and non-executive employment, retention and separation contracts, to designing and supporting...

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