Two years ago we reported on the case of Hooks v. Kitsap Support Tenant Services, Inc., in which a federal judge in Washington state held that the appointment of the NLRB's then-Acting General Counsel Lafe Solomon from June 18, 2010, through November 4, 2013, was invalid because it did not comply with the Federal Vacancies Reform Act of 1998. Now, the U.S. Court of Appeals for the District of Columbia Circuit, in SW General, Inc. (dba Southwest Ambulance) v. NLRB, has reached a similar conclusion, finding that Mr. Solomon’s service as Acting General Counsel after January 5, 2011, was invalid because the Vacancies Act made him ineligible to serve once he was nominated on that date to the vacant General Counsel position requiring the advice and consent of the Senate.
The Southwest Ambulance case began on January 31, 2013, when Mr. Solomon issued an unfair labor practice complaint against the employer before the Board. Mr. Solomon prevailed – at first – even though Southwest Ambulance argued that Mr. Solomon’s service after January 5, 2013, was invalid. But Southwest Ambulance had the last laugh at the D.C. Circuit. The employer argued that the plain language of the statute supported its contention that Mr. Solomon was no longer eligible to serve, and the appeals court agreed.
The Vacancies Act governs temporary appointments to positions that would normally require the advice and consent of the Senate. The law includes restrictions that the President and the Board (and Mr. Solomon) apparently simply ignored in allowing Mr. Solomon to serve as Acting General Counsel while his nomination to the General Counsel position was pending.
The decision is great for Southwest Ambulance, but it may be too late for many employers, who may not have not have raised the issue in litigation proceedings at the Board. The D.C. Circuit alluded to this in its opinion, indicating that it was not creating a “Noel Canning” situation, in which hundreds of Board decisions were voided because of invalid recess appointments. That having been said, employers who are litigating cases based in whole or in part upon actions of the Office of General Counsel during the time that Mr. Solomon was Acting General Counsel after January 5, 2011, may still be able to raise the issue.
Lafe Solomon was a long-time, high-ranking employee of the Board for many years before his appointment by President Obama to the Acting General Counsel position on June 18, 2010. He subsequently was nominated for the General Counsel position, but the Senate twice failed to confirm his nominations. The President withdrew his nomination in August 2013, and instead nominated Richard Griffin for General Counsel, a position that Mr. Griffin still holds today.