Supreme Court Decision on Wrongful Service by NLRB Official May Jeopardize Obama-Era Rulings

  • Mar 21, 2017
  • NLRB
  • Dennis J. Merley

The United States Supreme Court has ruled that former National Labor Relations Board (NLRB) acting General Counsel Lafe Solomon wrongfully served in that role while awaiting Senate confirmation of his appointment to the permanent post.

This ruling calls into question the validity of all actions that Solomon took during his three years in that office, and could lay the groundwork for unraveling a number of significant decisions issued by the  Obama-era NLRB.

What Action Was Wrongful?

The ruling relates to Solomon’s appointment in June, 2010, by former President Obama as acting General Counsel following the retirement of Ronald Meisburg. The General Counsel is the NLRB’s top prosecutorial post who handles all prosecutions of unfair labor practice charges, seeks court enforcement of agency decisions and supervises the activities of all NLRB Regional Offices.

After six months as acting General Counsel, President Obama tabbed Solomon for the permanent post, one of many federal government jobs commonly referred to as PAS positions, short for “Presidential Appointee in a Position Requiring Senate Confirmation.”

The PAS designation is the crux of the matter because under the Federal Vacancies Reform Act (FVRA), anyone nominated to fill a vacant PAS job may not perform the duties of that office until after Senate confirmation.  Seemingly, Solomon should have stepped aside and let someone else serve in the acting capacity while he waited for the Senate to confirm him.  He chose not to do so, however, and remained in the acting role until 2013, at which time the Senate declined to act on his nomination, leading President Obama to withdraw Solomon’s appointment in favor of Richard Griffin whom the Senate ultimately did confirm.

Why Are We Just Hearing About This Now?

The legitimacy of Solomon’s three-year tenure as acting General Counsel was primarily a theoretical question until 2015, when the United States Court of Appeals for the D.C. Circuit was asked to rule in the case of SW General Inc. In that matter, the NLRB charged the employer with violating the National Labor Relations Act by refusing to bargain with their employees’ labor union over discontinuance of longevity payments.  The employer challenged the NLRB’s finding on several grounds, most notably claiming that Solomon’s actions on behalf of the NLRB were invalid because his service was illegitimate under the FVRA.

The D.C. Circuit agreed with the company and vacated the NLRB’s decision, prompting the NLRB to appeal to the United States Supreme Court. The NLRB contended that the FVRA’s ban applied only to those situations where after the permanent slot became vacant, the next highest official (the “first assistant”) stepped in by default and later was tabbed to be the permanent replacement.  Since Solomon had not been the first assistant at the time he was designated as the acting General Counsel, the NLRB argued that the FVRA ban should not apply.

The Supreme Court disagreed with the NLRB and sided with the D.C. Circuit by a 6-2 vote. Chief Justice Roberts wrote for the majority in deciding that the statute plainly prevents anyone from performing the duties of a PAS position after being nominated for the permanent post regardless of the manner in which they came to serve in an acting capacity.  Had Congress wished to limit the application of the FVRA to first assistants, Roberts wrote, they could easily have done so but they did not.

Justices Sonia Sotomayor and Ruth Bader Ginsburg dissented, contending that the majority read the law too expansively. They concluded that once the president has appointed someone to fill in on an acting basis that appointment should be allowed to stand regardless of whether that individual is ultimately selected for the permanent vacancy.

Bottom Line

It cannot be said for certain how this ruling will affect the cases for which Solomon was responsible.  The last time this happened, the NLRB just issued orders validating all past defective actions so there was no significant impact.

Things could be very different this time around since we have a new administration from the other side of the political spectrum.  A new composition of National Labor Relations Board members may very well want to see certain Obama-era decisions rendered invalid.

Stay tuned because this is probably going to get very interesting.