Wednesday, March 22, 2017

Supreme Court Rules Against NLRB in Vacancies Act Case

Supreme CourtYesterday, the Supreme Court ruled (6-2) in NLRB v. SW General. The Court held that once President Obama nominated Lafe Solomon to be the NLRB's General Counsel, he could no longer serve in his current capacity as Acting General Counsel. This is because of a provision in the Federal Vacancies Act which says that someone can only serve in an acting capacity for a covered position if they served as first assistant to that position for at least 90 days in the previous year. Because Solomon was the Acting GC--not its first assistant--when nominated, he could not continue as Acting GC.

The two dissenters (Sotomayor & Ginsburg) would have held that this provision applies only to individuals who are first appointed as acting officials--not, as was the case with Solomon, those who were already acting once nominated. In addition to a textualist argument, they stressed historical examples similar to what happened with Solomon as well as the history of the Federal Vacancies Act, which was prompted by President Clinton's nomination of Bill Lan Lee to the DOJ's Department of Civil Rights. Scotusblog has a an informative description of the case.

Under the decision, once the President nominated Solomon, he became ineligible to serve as Acting GC. This begs the larger question: what to do about all of his actions during that time (Jan. 5, 2011-Nov. 4, 2013)? Unless I missed it in the decision, the Court doesn't say anything about the practical consequences of its decision. As a result, its probably best to consult the D.C. Circuit decision, which the Court affirmed. That case vacated an unfair labor practice charge. But what of all of the other functions of the GC's office?  For instance the certification of elections?  Theoretically, this could be an issue for a host of other actions. The D.C. Circuit noted that the NLRB could have, but didn't, argue that the ULP in SW General was made by a regional director acting upon a delegation of authority from Solomon. If challenged, I would expect the NLRB to raise that argument, at least with regard to non-ULP cases, and maybe those too. But the NLRB may not have to rely solely on this argument. At the end of the D.C. Circuit's decision, it emphasized what it saw as an important limiting feature of its decision:

Finally, we emphasize the narrowness of our decision. We hold that the former Acting General Counsel of the NLRB, Lafe Solomon, served in violation of the FVRA from January 5, 2011 to November 4, 2013. But this case is not Son of Noel Canning and we do not expect it to retroactively undermine a host of NLRB decisions. We address the FVRA objection in this case because the petitioner raised the issue in its exceptions to the ALJ decision as a defense to an ongoing enforcement proceeding. 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. See 29 U.S.C. § 160(e); Andrade, 729 F.2d at 1499.

This caveat notwithstanding, I do expect parties to raise SW General to try to vacate orders. I think the D.C. Circuit is right that those arguments should not prevail, but I anticipate some extra work for the NLRB to litigate this issue for a while. Also, I'm curious how many parties raised an FVRA argument--any readers have any insight on this?

-Jeff Hirsch 

 

 

http://lawprofessors.typepad.com/laborprof_blog/2017/03/supreme-court-rules-against-nlrb-in-vacancies-act-case.html

Labor and Employment News, Labor Law | Permalink

Comments

There are four cases besides SW General itself that are now dead on arrival in the circuit courts (although one of those was a redundant Murphy Oil case, so it doesn't really matter) and will definitely be vacated and sent back.

There are probably two dozen other cases where the argument either wasn't raised in a timely fashion, or the current General Counsel issued a "notice of ratification" reaffirming the issuance of the complaint, or both. The Third Circuit's already upheld both of them, and I don't foresee a court creating a circuit split over that kind of thing, but I suppose anything's possible.

There may well be further litigation in SW General itself over what the DC Circuit's opinion means. The court denied enforcement without explicitly remanding the case, and didn't explain why. In the past, though, the Board has reissued decisions which were denied enforcement on nonmerits grounds, and those reissued decisions have always been enforced, so I don't expect those arguments to succeed either.

The more interesting question is whether the new Board views itself as entitled to change the prior Board's opinions. To my way of thinking, it should not, since the defect was on the General Counsel's side and there was nothing inherently wrong about the Board decisions. But the new agency administration may well want to reverse its predecessor-- if, of course, the reissued decisions aren't hustled out before the new Republicans are parachuted in.

Posted by: Anon | Mar 23, 2017 8:25:38 PM

Post a comment