U.S. Supreme Court Finds that Lafe Solomon’s Service as Acting NLRB General Counsel Violated the FVRA

By Courtney Samford

On March 21, 2017, the U.S. Supreme Court finally resolved the issue of Lafe Solomon’s role as Acting General Counsel of the NLRB in National Labor Relations Board v. SW General, Inc.  In an opinion authored by Chief Justice Roberts, the Supreme Court held that Solomon’s position as Acting General Counsel violated The Federal Vacancies Reform Act of 1998 (“FVRA”) once he was nominated by then President Obama for the permanent position.  Generally, Article II of the U.S. Constitution requires the President to obtain Senate approval to appoint “Officers of the United States,” but the FVRA allows the President to appoint a limited class of individuals to serve as acting officers on a temporary basis until a replacement can be confirmed by the Senate.  Pursuant to the FVRA, certain individuals who are nominated for a permanent position may not serve as an acting officer.

In June 2010, a vacancy arose in the general counsel position for the NLRB.  Then President Obama appointed Solomon to serve as Acting General Counsel on a temporary basis, and several months later, nominated him to serve as the General Counsel.  Solomon’s temporary position did not require Senate confirmation, but the permanent position did.  However, the Senate refused to act on Solomon’s nomination, and Obama was forced to

Griffin is Sworn in As NLRB General Counsel

By Edwin S. Hopson

On November 4, 2013, Richard Griffin, Jr. was sworn in as NLRB General Counsel. His term will be for four years.  Griffin had served on the NLRB as a Board Member, having been recess appointed by President Obama in early January 2012.  His appointment, along with another recess appointee, was attacked as invalid.  The Supreme Court will hear that case this term.  As part of a deal this past summer, Griffin and one other recess-appointed Member vacated their position on the Board and President Obama nominated others to fill the vacant positions. Griffin, prior to being appointed to the Board, had been general counsel to the International Union of Operating Engineers.

Also, Griffin announced that Jennifer Abruzzo would be appointed as his Deputy General Counsel and that Rachel Gartner Lennie would be his Assistant General Counsel.

Griffin Confirmed by the Senate to be NLRB General Counsel

By Edwin S. Hopson

After a successful cloture vote on October 29, 2013, the Senate conducted a roll call vote on the nomination of Richard Griffin, Jr. to be General Counsel at the National Labor Relations Board.  He was confirmed by a vote of 55 to 44.  Once sworn in, Griffin will take over from Lafe Solomon who has been Acting General Counsel since June 2010. Griffin was previously general counsel of a major labor union, and one of the Board Members whose recess appointment was challenged in, among other cases, Noel Canning v. NLRB, which is pending in the Supreme Court.  Griffin’s appointment to the NLRB was withdrawn by the President in a deal this summer to install a fully confirmed Board.

NLRB Announces its Government Shutdown Contingency Plan

By Edwin S. Hopson

The National Labor Relations Board released its government shutdown contingency plan which is posted on its website at:

http://www.nlrb.gov/sites/default/files/attachments/basic-page/node-1718/NLRB%20Contingency%20Plan%20Revised%20Draft%209-27-2013.pdf

It states that “[i]n the event of an appropriations hiatus, it is the policy of the NLRB to:

A. Commence the orderly and expeditious shutting down of all but emergency

NLRB functions by securing files, property, and office facilities.

B. Ensure that the NLRB meets its responsibilities to the parties in current unfair

labor practice and election case proceedings consistent with the Anti-Deficiency

Act.

C. Ensure that NLRB employees are fully informed as to the reasons for the

shutdown; and that payroll and other employee benefit responsibilities are met.

D. Ensure that the NLRB retains the ability to respond to unfair labor practice

incidents that might result in irreparable harm to the private sector economy.”

The plan states that 1600 of its 1611 employees will be furloughed in the event of a shutdown, which could happen tomorrow.

The plan assumes that NLRB headquarters will have a minimal staff on the job, namely, the NLRB’s Chairman, and four other Board Members, the Acting General Counsel, the Deputy/Assistant General Counsel, the Executive Secretary, Solicitor, Chief Information Officer and Chief of Security, a total of 11.  Contacts by the public with field offices will be by voicemail.

 

Federal Judge Dismisses NLRB Court Case on Grounds of Lack of Quorum and Improper Appointment of Acting GC Solomon

By Edwin S. Hopson

On August 13, 2013, U.S. District Judge Benjamin Settle of the Western District of Washington, issued an opinion and order in Hooks v. Kitsap Tenant Support Services, Civil No. C13-5470 BHS, 2013 WL 4094344, dismissing an action initiated by the NLRB against the company brought under Section 10(j) of the National Labor Relations Act.  The bases on which Judge Settle issued his decision was (a) that the NLRB did not have a quorum of its members when the case was filed and (b) that Acting General Counsel Lafe Solomon’s appointment as acting general counsel was an improper appointment.  Solomon had authorized the court filing.

As to the lack of quorum issue, Judge Settle relied upon N.L.R.B. v. Enterprise Leasing Co. Southeast, LLC, ––– F.3d ––––, 2013 WL 3722388 (4th Cir.2013), and N.L.R.B. v. New Vista Nursing and Rehabilitation, 719 F.3d 203 (3rd Cir.2013).

The Board’s argument that Solomon had properly authorized the case to be filed was rejected based upon the court’s analysis of the Federal Vacancies Reform Act, which permits appointment of a person as an acting official if that person has in the last year served as a “personal assistant” to the departing officer.  The court found that Solomon’s appointment did not fit within the scheme of the Vacancies Reform Act and concluded his appointment was invalid.

Since Solomon was appointed Acting General Counsel on June 21, 2010, he has made scores if not hundreds of decisions which could now be called into question based upon this decision.

 

President Obama Nominates Lafe Solomon to be NLRB General Counsel

By Edwin S. Hopson

On May 23, 2013, the Whitehouse announced that the President had again sent the nomination of Lafe Solomon, Acting General Counsel of the National Labor Relations Board, to the Senate, seeking confirmation to a four year term as NLRB General Counsel.  Mr. Solomon was first nominated for the job on January 5, 2011, but his nomination never came up for a vote.  It can be expected that Mr. Solomon’s nomination will receive significant opposition from Republican Senators over a number of issues including his decision to prosecute a complaint against Boeing over its decision to open a manufacturing plant in South Carolina rather than expand its plant in Puget Sound, Washington, where it had experienced labor problems and work stoppages in the past.  Mr. Solomon has been Acting General Counsel at the NLRB since June 21, 2010, and began his career at the NLRB in 1972 as a field examiner.

Acting NLRB General Counsel Proposes More Regional Office Consolidations

By Edwin S. Hopson

NLRB Acting General Counsel Lafe Solomon has just announced that he is considering yet another reorganization of NLRB Regional offices as part of the ongoing effort to restructure field operations in light of new technologies and changing patterns of case loads.

Under the plan, Regional Office in Milwaukee, Wisconsin (Region 30) would become a Subregion of the Minneapolis, Minnesota Region (Region 18), with the Regional Director being located in Minneapolis. The Des Moines, Iowa Resident Office would continue to be assigned to the Minneapolis Region.  The San Juan Regional Office (Region 24) would become a Subregion of the Tampa, Florida Region (Region 12), with the Regional Director located in Tampa.  The Miami and Jacksonville, Florida offices would continue to be assigned to the Tampa Region.  Solomon stated in a press release that no offices will actually be closed under the proposed reorganization. 

According to Solomon, the proposed reorganizations came about in light of the planned retirements of Milwaukee Regional Director Irv Gottschalk, and San Juan Regional Director Marta Figueroa.  Assuming the plan is approved, the proposed reorganization would occur shortly after the effective date of retirement date of the Director in the office that would become a Subregional office.

In his press release, Solomon stated he would thoroughly consider input from Agency staff, from external stakeholders, including practitioners, members of the management-labor relations community, and Members of Congress, before making a final proposal to the Board.  Any feedback regarding the proposed restructuring should be submitted to Associate General Counsel Anne Purcell in the Division of Operations-Management at feedback@nlrb.gov or mailed to her at the National Labor Relations Board, Division of Operations-Management, 1099 14^th Street NW; Suite 10206, Washington DC 20570. Comments should be submitted by April 22, 2013.