Former NLRB Acting General Counsel Lafe Solomon was not permitted to serve in that capacity once former President Obama nominated him for the position of General Counsel of the NLRB. So held the U.S. Supreme Court yesterday in a 6-2 decision. The decision is just the most recent in a line of cases on the NLRB’s authority to act when political disagreements in the U.S. Senate preclude the confirmation of the President’s nominees.
The case arose out of an unfair labor practice (“ULP”) complaint filed against an employer. A Regional Director of the NLRB issued the complaint pursuant to authority delegated from the Acting General Counsel. The employer challenged the complaint on the ground that the Acting General Counsel was not permitted to serve in that capacity because of his then-pending nomination to the General Counsel position itself.
The employer relied upon a federal law called the Federal Vacancies Reform Act of 1998. That statute regulates who can serve in an “acting” role while the U.S. Senate considers the nomination of the President for the position in question. The idea is to balance the need for agencies to continue operations while the Constitutional process of confirming the President’s nominations continues.
The legal issue in the case turned on whether a portion of the statute — prohibiting those who are nominated for the position in which they are serving in an acting capacity — was intended to apply broadly or narrowly. The Court found that the plain language of the statute provided for a broad application.
In this particular case, the Supreme Court’s action resulted in the employer successfully defending against the NLRB’s complaint. The Court affirmed the appeals court’s decision to vacate the NLRB’s order against the employer. The NLRB did not appeal this portion of the appeals court’s decision, even though it had argued in the lower court that vacating the order wasn’t necessary even if the Acting General Counsel’s service was invalid. Thus, how the Supreme Court would have ruled on this question is unknown.
As a result, labor professionals should exercise caution in placing to much practical significance in the decision. Unlike in prior decisions involving the NLRB’s membership, where the Court’s decision invalidated large swaths of NLRB decisions, various considerations may well limit the impact of the decision here.
For example, the employer in this case made the validity of the Acting General Counsel’s service a specific “affirmative defense” to the ULP complaint. As the lower court observed in its decision, this case was not the “Son of Noel Canning.” The court “doubt[ed]” that a party that failed to timely raise the objection the employer did in this case would have “enjoy[ed] the same success.” Accordingly, those with questions about the application of this holding to their specific situation should seek out qualified labor law counsel to assist.