by Phil Wilson

The Clash, The Beatles and Lafe Solomon

Radio DJ Wolfman Jack

The Supreme Court at last issued its decision in National Labor Relations Board v. SW General, Inc. The Court found that Lafe Solomon’s stint as Acting General Counsel to the NLRB violated the Federal Vacancies Reform Act (“FVRA”). While Chief Justice Roberts took pains to make clear its decision is not “the son of Noel Canning” it at least qualifies as a first cousin.

Unless you have a case on appeal squarely raising the FVRA issue, the most entertaining part of this opinion is Chief Justice Roberts’ somewhat painful (even for a lawyer) construction of the FVRA language related to “Acting” appointments.:

Suppose a radio station announces: “We play your favorite hits from the ’60s, ’70s, and ’80s. Notwithstanding the fact that we play hits from the ’60s, we do not play music by British bands.” You would not tune in expecting to hear the 1970s British band “The Clash” any more than the 1960s “Beatles.” The station, after all, has announced that “we do not play music by British bands.” The “notwithstanding” clause just establishes that this applies even to music from the ’60s, when British bands were prominently featured on the charts. No one, however, would think the station singled out the ’60s to convey implicitly that its categorical statement “we do not play music by British bands” actually did not apply to the ’70s and ’80s.

I’m holding out hope that this hypothetical radio station would at least make an exception for the Rolling Stones.

Instead of going through the background of the case (great analysis here) I want to focus on the practical impact of the decision. As we sit today – and there will be considerably more litigation on this point – there are several categories of people who should consider options after the decision.

  1. People who raised FVRA objections to cases that arose when Lafe Solomon served as Acting General Counsel (roughly June 2010 to October 2013). These folks are most directly impacted by the SW General By raising the FVRA issue directly these cases will now have to account for the Supreme Court’s decision. Justice Roberts went out of his way to state that the ruling in this case was limited – it does not overturn every decision made by Solomon. In the DC Circuit opinion that was under review in this case the Court stated its opinion that Solomon’s decisions were voidable and not void. This means the impact will be decided in each case and the court can – but isn’t required – to void the Acting General Counsel’s decision.
  2. People impacted by decisions made by Solomon during the time he improperly served as Acting General Counsel. Most of these cases will already be resolved, but some could still be on appeal. These companies should consider whether bringing up the SW General decision gives them “another bite at the apple” or might create additional pressure on the General Counsel to settle a case on appeal. You could even raise the issue by, for example, refusing to bargain now with a union certified under a Lafe Solomon decision. With the current General Counsel it is highly unlikely this strategy will be effective. But the current General Counsel won’t be around much longer (more on that in a minute), so it is worth considering this option.
  3. You lost a case based on precedent that happened while Lafe Solomon improperly served as Acting General Counsel. This is the longest shot, but depending on your situation it may be one to consider. Here you argue that a precedent relied on in your case was improperly decided. Again, a long shot.

None of these have been tested and you should talk to your labor counsel if any of these apply to you.

One other key consideration is timing. Current General Counsel Griffin’s term expires in November of this year. One strategy will be to slow play any case (especially a case currently on appeal) until a new General Counsel is put in place.

After Noel Canning the Board ended up adopting much of the actions taken by the illegitimate Board. However, in this case once the new General Counsel is in place the chances are he or she – who should be polar opposite of Richard Griffin – will reverse many decisions that come before them. That could be a game-changer depending on your situation.

We will keep you posted once the cases start getting resolved. In the meantime (unlike Justice Roberts’ hypothetical radio station) don’t touch that dial!