The Supreme Court ruled that President Obama’s naming of Lafe Solomon as acting general counsel of the National Labor Relations Board was illegal.
In 2010, Obama appointed Lafe Solomon, then a senior NLRB employee, as acting general counsel. Six months later, Solomon was nominated to the position on a regular basis, but after the Senate didn’t act, Obama withdrew the nomination.
Federal law prohibits someone serving in an acting capacity from continuing to do so after they have been nominated by the President to the same post.
Because Solomon continued to serve as NLRB acting general counsel after President Obama’s nomination, the High Court ruled that actions he took following his nomination, between January 2011 and October 2013, were invalid, including the filing of unfair labor practice charges.
We’ve been down this road before. During the George W. Bush Administration unfilled vacancies reduced the NLRB from five to two members. The Supreme Court later overturned all of that board’s decisions because it lacked a required three-member quorum when it only had two members.
A similar situation arose when the High Court struck down Obama’s appointment of NLRB members during what the administration incorrectly asserted was a Senate recess. In both those cases, the NLRB had to revote on decisions it had made.
That won’t happen here. Employers can use the Supreme Court decision to challenge charges during the time Solomon served improperly only if they had raised that issue during their earlier defense.
However, employers who are involved in ongoing litigation might be able to challenge complaints Solomon issued during that period, says attorney Frederick Warren of the Ford & Harrison law firm.
Discovery issues also may produce challenges, argues J. William Manuel of Bradley Arant Boult Cummings. “If an employer had an adverse ruling from the NLRB during the time when Solomon served, this may now provide an avenue to challenge that decision.”