The National Labor Relations Board (NLRB) has the obligation to enforce the National Labor Relations Act (NLRA). The NLRB’s General Counsel is statutorily responsible for prosecuting unfair labor practice charges before the NLRB. Thus, NLRB’s General Counsel files all unfair labor practice complaints before the NLRB. Under the NLRA, the General Counsel must be appointed by the President and confirmed by the Senate.
In June 2010, President Obama directed Lafe Solomon to serve as Acting General Counsel after General Counsel Ronald Meisburg resigned. On January 5, 2011, the President nominated Mr. Solomon to serve as NLRB General Counsel. The Senate declined to confirm Mr. Solomon’s appointment. President Obama then withdrew Mr. Solomon’s nomination and nominated Richard Griffin, whom the Senate subsequently confirmed late in 2013. Altogether, Mr. Solomon served as Acting General Counsel from June 21, 2010, to November 4, 2013.
On Friday, August 7, 2015, in SW General, Inc. v. NLRB, No. 14-1121, the United States Court of Appeals for the D.C. Circuit ruled that between January 11, 2011 and November 4, 2013, Mr. Solomon held his position as NLRB General Counsel in violation of the Federal Vacancies Reform Act (FVRA). The FVRA provides that a person may serve as an acting officer in a position that requires Senate confirmation for 210 days or until the President nominates that person for the permanent position.
Consequently, the Court held all unfair labor practice complaints issued by the NLRB’s General Counsel between January 11, 2011, and November 4, 2013, to be voidable. In order to void an unfair labor practice complaint issued by Mr. Solomon—and any subsequent NLRB determination stemming from that complaint—the charged employer (1) must have raised the FVRA violation as a defense to the ULP complaint or as an exception to the Administrative Law Judge’s recommendation, and (2) the NLRB must have had reasonable notice of the FVRA violation.
Private-sector employers targeted with an NLRB unfair labor practice complaint between January 11, 2011, and November 4, 2013, now potentially possess a strong defense to the complaint and any subsequent decision issued by the NLRB. Employers who challenged the General Counsel’s authority under the FVRA to issue the unfair labor practice complaint during the administrative investigation or proceedings likely can have the complaint and resulting decisions declared void. The NLRA’s six month statute of limitations on unfair labor practice complaints should prohibit the NLRB’s General Counsel Office from re-filing any voided complaint.