The U.S. Supreme Court has accepted the National Labor Relations Board’s petition to decide if a former acting general counsel of the NLRB served in violation of federal law. NLRB v. SW General, Inc., Case 15-1251 (June 20, 2016).

As we wrote here earlier  (“Complaint Issued by NLRB’s Acting General Counsel was Unauthorized, Federal Appeals Court Rules”), in vacating a Board order, the U.S. Court of Appeals for the D.C. Circuit held that former 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 court held that Solomon served in violation of the Federal Vacancies Reform Act (FVRA) for nearly three years, from 2011 through most of 2013, because the FVRA prohibited him from serving as the Acting General Counsel after President Obama nominated him for the position.

The case is important to all statutorily created agencies, as the FVRA affects all federal positions that require a presidential nomination and Senate confirmation. For most agencies, decisions by the unauthorized official are void ab initio, that is, from the moment they are made, and may not be ratified by a subsequently validly nominated and confirmed successor. However, the FVRA exempts the position of NLRB General Counsel from these provisions, instead making the decisions of an acting general counsel, or a regional director acting on his behalf, only voidable. The NLRB can raise different arguments as to why the decision should not be voided.

The case will be heard by the Court during its next term, which begins in October. A decision should issue before the term concludes in June 2017.

 

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Photo of Patrick L. Egan Patrick L. Egan

Patrick L. Egan is a principal in the Boston, Massachusetts, office of Jackson Lewis P.C. Patrick works in traditional labor law.

He has assisted employers in all industries in all phases of union organizing campaigns. Patrick has represented employers in card-signing efforts and…

Patrick L. Egan is a principal in the Boston, Massachusetts, office of Jackson Lewis P.C. Patrick works in traditional labor law.

He has assisted employers in all industries in all phases of union organizing campaigns. Patrick has represented employers in card-signing efforts and representation and decertification campaigns. He has conducted union awareness and positive employee relations training for hundreds of companies and employer groups. He has also assisted dozens of employers to preempt, prepare for and defend against union corporate campaigning.

Patrick has appeared for employers in representation, objections and challenged ballot hearings at the National Labor Relations Board. He has also represented employers in unfair labor practice charge investigations and trials. Patrick has also represented employers before the Massachusetts Commission Against Discrimination, the Equal Employment Opportunity Commission, the Occupational Safety and Health Administration and other state and federal agencies. Patrick has served as chief spokesman at hundreds of collective bargaining negotiations, including negotiations seeking a first contract and those aimed at reaching a successor contract. He speaks frequently before various employer and human resources groups on a variety of labor relations topics.

Patrick was a four-year starter and a senior captain of the varsity soccer team at Holy Cross.

After practicing management-side labor law at smaller firms in Springfield and Boston, Massachusetts, Patrick joined Jackson Lewis in 1990. He was elected a partner effective January 1, 1995.

Photo of Philip B. Rosen Philip B. Rosen

Philip B. Rosen is a Principal in the New York City office of Jackson Lewis P.C. and a member of the Firm’s Management Committee. Mr. Rosen also leads the firm’s Labor Practice Group. He joined the Firm in 1979 and served as Managing…

Philip B. Rosen is a Principal in the New York City office of Jackson Lewis P.C. and a member of the Firm’s Management Committee. Mr. Rosen also leads the firm’s Labor Practice Group. He joined the Firm in 1979 and served as Managing Partner of the New York City office from 1989 to 2009.

Mr. Rosen lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media, reorganizations and reductions-in-force, purchase/sale transactions, sexual harassment and other workplace conduct rules, compliance with the Americans With Disabilities Act, wrongful discharge and other workplace litigation, corporate campaigns and union organizing matters, collective bargaining, arbitration and National Labor Relations Board proceedings. He has been quoted by the press on many labor matters, including the National Labor Relations Board’s recent initiatives on protected concerted activity and the proposed Notice Posting requirements.