The political gridlock in Washington DC caused several years of tumult at the NLRB, spawning two Supreme Court decisions (Noel Canning and New Process Steel) and several courts of appeals decisions regarding the Board’s ability to act without regular appointments, and resulted in scores of decisions having to be reconsidered by a newly constituted Board. Most of the litigation during the last few years involved whether the Board had the requisite quorum it needed to act. While the Board quorum received most of the attention, there also exists an entire line of arguments attacking the authority of perpetual Acting General Counsel Lafe Solomon to act during his brief tenure. Of course, regardless of the type of claim, the business of the NLRB ground on despite these substantial issues being raised with little thought to the consequences.
In Southwest Ambulance v. NLRB, Case No. 14-1107 (DC Cir. August 7, 2015), the DC Circuit Court of Appeals held that the Acting General Counsel’s appointment violated the Federal Vacancies Reform Act (“FVRA”), which meant that during the period of violation the NLRB (as in all Regions) was without authority to issue a complaint for a 23 month period. In Southwest Ambulance, the Court was presented with an allegation that the employer made a unilateral change to a term or condition of employment upon expiration of a collective bargaining agreement in violation of the NLRA. After a hearing, the Administrative Law Judge concluded a violation occurred. In its exceptions, the employer challenged the complaint on the grounds that Solomon did not have authority to issue a complaint because his appointment was in violation of the FVRA. This argument was rejected by the NLRB, which upheld the unfair labor practice on appeal. The employer appealed to the DC Circuit and the appeals court refused to enforce the NLRB’s order finding the complaint was issued without proper authority.
In addressing whether the FVRA was properly followed, the Court noted that the FVRA sets limits on who can serve pursuant to the statute: “a person may not serve as an acting officer for an office under this section if, (a) during the 365-day period preceding the date of the death, resignation, or beginning of inability to serve, such person (i) did not serve in the position of first assistant to the office of such officer; or (ii) served in the position to the office of such officer for less than 90 days; and (B) the President submits a nomination of such person to the Senate for appointment to such office.”
The Court reviewed the timeline of events. In June 2010, Ronald Meisburg resigned as NLRB General Counsel. The President, citing the FVRA, directed Soloman who was then the Director of the NLRB’s Office of Representation Appeals, to serve as Acting General Counsel. On January 5, 2011, the President submitted Solomon’s nomination to the Senate. Ultimately, Solomon was re-nominated and that nomination was withdrawn in 2013. Current General Counsel Richard Griffin’s nomination was submitted instead.
The Court held that Solomon’s appointment under the FVRA was in violation as of January 2011 when the President submitted his nomination to the Senate. As a consequence, the Court held that under Section 3348(e)(1) of the FVRA, any action taken in violation of the statute was void. Specifically, that provision reads in part: “[a]n action taken by any person who is not acting [in compliance with the FVRA] shall have no force or effect” and “may not be subsequently ratified.”
The Court ruled that since the complaint issued against the employer was void and not subject to ratification, the NLRB’s consideration of the case on appeal (by a properly constituted Board) did not save the case. The court stressed the narrow nature of its ruling:
[W]e emphasize the narrowness of our decision. We hold that 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 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 of whether proceedings are ongoing or concluded–will enjoy the same success.
Thus, while there are many cases in the NLRB process challenging Solomon’s ability to act during his tenure, there likely are only a few that raised this specific attack in a timely fashion: that Solomon’s actions were in violation of the FVRA. Still, it is hard to imagine how, if the FVRA explicitly states that all actions taken in violation of the statute are void and not subject to ratification, this argument could not be raised at any time. Solomon took many actions during the 23 month period at issue, including appointing Regional Directors, issuing complaints, seeking injunctive relief, all of which could be considered void and not subject to ratification.