This morning the U.S. Supreme benchslapped the Obama Administration’s use of appointment power in NLRB v. SW General, Inc. In a 6-2 decision, the Court held that the President violated the Federal Vacancies Reform Act (“FVRA”) by allowing Lafe Solomon to serve as “Acting” NLRB General Counsel while his nomination to serve as General Counsel was pending before the Senate.
Appointing an NLRB General Counsel requires the advice and consent of the Senate. The FVRA states that a person”may not fill a Senate-appointed position in an “acting” capacity while that person’s nomination to hold the position as a regular appointment is pending before the Senate. Undeterred by the FVRA, President Obama nominated Solomon to serve as the NLRB General Counsel, but allowed Solomon to continue to serve in an “acting” capacity as well. After losing an unfair labor practice case before the NLRB, employer SW General argued that the NLRB had no legal authority to issue the ULP complaint, because the NLRB General Counsel issues such complaints, and Solomon was improperly serving as “acting” General Counsel when the complaint issued. The Supreme Court agreed.
This case might invalidate a host of ULP determinations arising out of NLRB complaints between January 5, 2011 and November 4, 2013, the period during which Solomon improperly served as “acting” General Counsel. But not so fast! The Court said nothing about the long-range impact of this case, and the D.C. Circuit decision below made clear that “this case is not Son of Noel Canning.” The D.C. Circuit’s decision below stressed that only cases that actually raised this appointment issue when initially appealing from an ALJ’s decision would be affected by this case, and the Supreme Court did not say otherwise.