Supreme Court Finds Lafe Solomon Improperly Served as NLRB General Counsel

The U.S. Supreme Court found that the National Labor Relations Board’s Acting General Counsel, Lafe Solomon, improperly served in that capacity from 2011-2013, while awaiting Senate confirmation.

Case Background: Under the Federal Vacancies Reform Act (FVRA), an individual who has been nominated to fill a position requiring Presidential appointment and Senate confirmation may not perform the duties of that position in an acting capacity. Solomon had been appointed by President Obama as Acting General Counsel, and was subsequently nominated to fill the role permanently. His nomination, however, languished before the Senate for almost two years until it was finally withdrawn, and Solomon continued in his Acting role during this time.

In the meantime, the NLRB found that an employer had committed unfair labor practices (ULPs), and the employer appealed the NLRB’s ruling to the U.S. Court of Appeals for the D.C. Circuit. Among other things, the employer argued that, because Solomon was improperly serving as Acting General Counsel, the ULP complaint issued by one of his Regional Directors on his behalf was invalid. The D.C. Circuit agreed, and the NLRB appealed to the Supreme Court.

The Court’s Ruling: In NLRB v. Southwest General, Inc. dba Southwest Ambulance, the Supreme Court found the statutory language of the FVRA to be clear, and affirmed the Circuit Court’s ruling that Solomon was not legally acting as General Counsel once he had been nominated to fill the position permanently.

What This Means for Employers: The Supreme Court did not opine on the impact of this ruling in other cases. The D.C. Circuit however held that the actions of Solomon (and those acting on his behalf) were voidable, but not automatically void. Employers who raised a similar FVRA objection in cases that are still pending will likely benefit from this ruling. In other pending cases where this objection was not raised, it may still be worthwhile to raise it now – although such objections may be deemed to have been waived by not being argued previously.