Wednesday, March 22, 2017

SCOTUS takes largely meaningless swipe at Obama’s NLRB legacy


Lafe Solomon
There is little doubt that under President Obama, the NLRB reinvented itself into an agency about which all employers must pay attention. One can trace much of this reinvention back to Lafe Solomon (a man with whom I once shared an NRP microphone), the NLRB’s acting general counsel from June 2010 through October 2013.

Yesterday, however, in NLRB v. SW General, Inc. [pdf], the Supreme Court held that Mr. Solomon’s tenure from January 5, 2011, through October 29, 2013, was unlawful, as it violated the Federal Vacancies Reform Act of 1998 (FVRA).

What is the FVRA (besides a statute I had never heard of until yesterday)? It provides the succession plan for certain federal appointments (such as NLRB general counsel), and authorizes the President to override its automatic succession via temporary appointments (as President Obama did when he appointed Mr. Solomon acting general counsel). The FVRA also prohibits someone from serving as an acting officer if the President has nominated that person to fill the vacant office permanently (as President Obama did with Mr. Solomon on January 5, 2011).

The specific question SCOTUS answered in SW General is whether the FVRA equally applies to individuals already serving in that same position (as Mr. Solomon had been since June 2010) at the time of his or her official nomination to fill the vacancy permanently. SCOTUS held that the FVRA’s prohibition applied to Mr. Solomon even though he had already been serving as NLRB acting general counsel at the time of his nomination.

This is all very interesting reading on the inner workings of our federal government, and the power, ability, and willingness of the Supreme Court to check presidential powers (a very important issue about which I predict we will be hearing a lot over the next four years).

The deeper question, however, is what this case means to decisions rendered by the NLRB on complaints authorized by Mr. Solomon during his unlawful tenure as NLRB general counsel. The answer is likely very little. And the key to why it means very little hides in footnote 2 of the opinion:
The FVRA exempts “the General Counsel of the National Labor Relations Board” from the general rule that actions taken in violation of the FVRA are void ab initio. 5 U. S. C. §3348(e)(1). The Court of Appeals “assume[d] that section 3348(e)(1) renders the actions of an improperly serving Acting General Counsel voidable” and rejected the Board’s argument against voiding Solomon’s actions. The Board did not seek certiorari on this issue, so we do not consider it.
In other words, because the NLRB did not appeal the void-versus-voidable issue, SCOTUS did not consider it. And this distinction is huge. If the actions of an improperly serving Acting General Counsel are void, then all Board decisions that flowed from those actions automatically become invalid. Because, however, they are merely voidable, the losing party must do something (i.e., file some sort of court action to vacate the decision) to secure the undoing of the otherwise unlawfully rendered decision. And, because these cases are up to six years old, many, if not most, are going to be closed, and statutes of limitations will foreclose any further action. (I’ll leave to others who have more free time on their hands than me to categorize the voidable cases as “closed” or “subject to further action”.)

Thus, while SW General is intellectually interesting, it will likely have little impact on President Obama’s NLRB legacy, a legacy that President Trump’s NLRB will likely undo over the next four years anyway.

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