September 23, 2020

Volume X, Number 267

September 23, 2020

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September 22, 2020

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September 21, 2020

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Supreme Court to Hear Appeal of NLRB’s Former Acting General Counsel’s Decisions Following Nomination

The U.S. Supreme Court has accepted the National Labor Relations Board’s petition to decide if a former acting general counsel of the NLRB served in violation of federal law. NLRB v. SW General, Inc., Case 15-1251 (June 20, 2016).

As we wrote here earlier  (“Complaint Issued by NLRB’s Acting General Counsel was Unauthorized, Federal Appeals Court Rules”), in vacating a Board order, the U.S. Court of Appeals for the D.C. Circuit held that former Acting General Counsel Lafe Solomon could not have lawfully delegated authority to an NLRB Regional Director to issue the underlying unfair labor practice complaint against Southwest Ambulance because Mr. Solomon, at the time, was not lawfully appointed as the Board’s Acting General Counsel. SW General, Inc. v. National Labor Relations Board, No. 14-1107, 2015 U.S. App. LEXIS 13812 (D.C. Cir., Aug. 7, 2015).  The court held that Solomon served in violation of the Federal Vacancies Reform Act (FVRA) for nearly three years, from 2011 through most of 2013, because the FVRA prohibited him from serving as the Acting General Counsel after President Obama nominated him for the position.

The case is important to all statutorily created agencies, as the FVRA affects all federal positions that require a presidential nomination and Senate confirmation. For most agencies, decisions by the unauthorized official are void ab initio, that is, from the moment they are made, and may not be ratified by a subsequently validly nominated and confirmed successor. However, the FVRA exempts the position of NLRB General Counsel from these provisions, instead making the decisions of an acting general counsel, or a regional director acting on his behalf, only voidable. The NLRB can raise different arguments as to why the decision should not be voided.

The case will be heard by the Court during its next term, which begins in October. A decision should issue before the term concludes in June 2017.

Jackson Lewis P.C. © 2020National Law Review, Volume VI, Number 173

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About this Author

Patrick Egan, Labor Law Attorney, Jackson Lewis, Boston Law Firm
Patrick L. Egan

Patrick L. Egan is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. Mr. Egan works in traditional labor law.

He has assisted employers in all industries in all phases of union organizing campaigns. Mr. Egan has represented employers in card-signing efforts and representation and decertification campaigns. He has conducted union awareness and positive employee relations training for hundreds of companies and employer groups. He has also assisted dozens of employers to preempt, prepare for and defend against union corporate campaigning....

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Howard Bloom, Jackson Lewis, labor union attorney, unfair practice investigations lawyer, employment legal counsel, bargaining law
Principal

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification campaigns. He also represents clients at the National Labor Relations Board in connection with bargaining unit issues, objections and challenges, as well as unfair labor practice investigations and trials. Mr. Bloom also has been the spokesperson at countless first and successor contract collective bargaining negotiations, and regularly advises on collective bargaining agreement administration issues, including grievance/arbitration issues.

Mr. Bloom has appeared before the Massachusetts Supreme Judicial Court, the U.S. Court of Appeals for the District of Columbia, several U.S. District Courts, the National Labor Relations Board, the Massachusetts Labor Relations Commission, the Equal Employment Opportunity Commission and the Massachusetts Commission Against Discrimination.

617-367-0025
Philip B. Rosen Jackson Lewis  Preventive Practices Lawyer & Collective Bargaining Attorney
Principal

Philip B. Rosen is a Principal in the New York City, New York, office of Jackson Lewis P.C. He is a member of the firm's Board of Directors and co-leads the firm's Labor and Preventive Practices Group. He joined the firm in 1979 and served as Managing Partner of the New York City office from 1989 to 2009.

Mr. Rosen lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media, reorganizations and reductions-...

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