Vacating a Board order adopting an Administrative Law Judge’s decision holding that an employer violated Sections 8(a)(1) and (5) of the National Labor Relations Act by ceasing to pay longevity pay under a collective bargaining agreement between the employer and the union representing its employees, the U.S. Court of Appeals for the D.C. Circuit has held that Acting General Counsel Lafe Solomon could not have lawfully delegated authority to an NLRB Regional Director to issue the underlying unfair labor practice complaint against Southwest Ambulance because Mr. Solomon, at the time, was not lawfully appointed as the Board’s Acting General Counsel. SW General, Inc. v. National Labor Relations Board, No. 14-1107, 2015 U.S. App. LEXIS 13812 (D.C. Cir. Aug. 7, 2015).

The union had filed an unfair labor practice charge against Southwest alleging Southwest unlawfully (under the NLRA) had unilaterally discontinued paying longevity payments called for under the parties’ collective bargaining agreement. Pursuant to a delegation of authority from Mr. Solomon, an NLRB Regional Director issued an unfair labor practice complaint against Southwest. An NLRB Administrative Law Judge found that Southwest’s unilateral action was unlawful. Southwest appealed to the Board. It alleged, as one of its exceptions to the ALJ’s decision, that Mr. Solomon was serving as Acting General Counsel in violation of the Federal Vacancies Reform Act when the complaint issued.

President Barack Obama appointed Mr. Solomon to the position of Acting General Counsel pursuant to the FVRA on June 21, 2010. On January 5, 2011 and May 24, 2013, President Obama submitted and resubmitted Solomon’s nomination to be General Counsel. Solomon’s nomination ultimately was withdrawn and Richard Griffin became General Counsel on November 5, 2013.

Southwest argued that, under the FVRA, Solomon could not serve as Acting General Counsel once President Obama nominated him (in January, 2011) to be General Counsel. Southwest noted that the FVRA prohibited Solomon from serving both as Acting General Counsel and the “permanent nominee” unless Solomon previously served as the “first assistant” to the General Counsel for 90 of the previous 365 days or he was confirmed by the Senate to be the first assistant. According to Southwest, because Mr. Solomon did not serve as the first assistant at any point during the year preceding his appointment as Acting General Counsel, his appointment was invalid. The Board nevertheless upheld the ALJ’s violation finding, and Southwest sought judicial review.

The Court agreed with Southwest, finding the FVRA prevented Mr. Solomon from serving as Acting General Counsel at the time the unfair labor practice complaint issued against Southwest. In reaching this finding, the Court explained that Mr. Solomon served in violation of the FVRA from January 5, 2011, to November 4, 2013. However, it warned that other challengers might not meet with the same success. The Court noted that “this case is not Son of Noel Canning and we do not expect it to retroactively undermine a host of NLRB decisions.” Mr. Solomon’s unlawful appointment was raised by Southwest as an exception “to the ALJ’s decision as a defense to an ongoing enforcement proceeding[,]” and therefore, the Court cautioned, it doubted whether “an employer that failed to timely raise an FVRA objection—regardless whether enforcement proceedings are ongoing or concluded—w[ould] enjoy the same success [as Southwest].”