Court Decision Raises Questions for Employers Affected by Acting NLRB General Counsel Solomon
In a continuing series of challenges to the president’s authority to appoint positions at the National Labor Relations Board, former General Counsel Lafe Solomon was recently declared to have unlawfully filled the position for the period January 5, 2011 to November 4, 2013. The case is titled SW Gen., Inc. v. NLRB, and was decided on August 7, 2015 by the District of Columbia Circuit of the United States Court of Appeals. During the period January 5, 2013–November 4, 2013, Solomon served as acting general counsel while his nomination was pending. The D.C. Circuit held that was a violation of federal law.
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News
August 12, 2015
© 2015 Brownstein Hyatt Farber Schreck, LLP
www.bhfs.com
410 17th Street, Suite 2200
Denver, Colorado 80202
Court Decision Raises Questions for Employers Affected by Acting NLRB
General Counsel Solomon
In a continuing series of challenges to the president’s authority to appoint positions at the National Labor
Relations Board, former General Counsel Lafe Solomon was recently declared to have unlawfully filled
the position for the period January 5, 2011 to November 4, 2013. The case is titled SW Gen., Inc. v.
NLRB, and was decided on August 7, 2015 by the District of Columbia Circuit of the United States Court
of Appeals. During the period January 5, 2013–November 4, 2013, Solomon served as acting general
counsel while his nomination was pending. The D.C. Circuit held that was a violation of federal law.
Solomon had, previously, been appointed acting general counsel, and the D.C. Circuit held that, until
January 5, 2011, his service in that position was lawful. However, effective January 5, 2011, Solomon
was nominated to be the general counsel, and while his nomination was pending Senate review, he
continued to serve as acting general counsel. According to the court, that was what violated federal law,
specifically the Federal Vacancies Reform Act (FVRA). Under FVRA, 5 U.S.C. 3345(a), a nominee for a
position as high as the NLRB general counsel, in other words, a nominee to be an officer of a federal
agency whose nomination is subject to advice and consent of the Senate, cannot serve in an acting
capacity in the office, unless the nominee had previously been a “first assistant” to the position. In this
case, Solomon had not been “first assistant” to the prior general counsel; therefore, he did not fit the
exception. He should not, under FVRA, have served as the acting general counsel while his nomination
was pending. Accordingly, the court dismissed the case.
The D.C. Circuit cautioned that its holding was unlikely to be applied in many other cases: “We doubt
that an employer that failed to timely raise an FVRA objection—regardless whether enforcement
proceedings are ongoing or concluded—will enjoy the same success.” In other words, to achieve the
same result, an employer must, according to the D.C. Circuit, have had a case initiated against it, during
the period January 5, 2011 to November 4, 2013, have objected to Solomon’s authority, and finally,
have preserved that objection by litigating and appealing it as necessary. In contrast, readers may
remember the Supreme Court’s 2014 decision, NLRB v. Noel Canning, which invalidated the board itself
for a period of time, throwing numerous cases into doubt. The D.C. Circuit said, “(T)his case is not son
of Noel Canning, and we do not expect it to retroactively undermine a host of NLRB decisions.”
Employers against whom the NLRB commenced action during the period January 5, 2011–November 4,
2013, should consult with labor counsel regarding this latest decision.
Bill C. Berger
Shareholder
bberger@bhfs.com
303.223.1178
Tiffany A. Updegraff
Associate
tupdegraff@bhfs.com
303.223.1143
News
August 12, 2015
© 2015 Brownstein Hyatt Farber Schreck, LLP
www.bhfs.com
410 17th Street, Suite 2200
Denver, Colorado 80202
This document is intended to provide you with general information regarding SW Gen., Inc. v. NLRB.
The contents of this document are not intended to provide specific legal advice. If you have any
questions about the contents of this document or if you need legal advice as to an issue, please contact
the attorney listed or your regular Brownstein Hyatt Farber Schreck, LLP attorney. This communication
may be considered advertising in some jurisdictions.
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