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U.S. Supreme Court Strikes Down Appointment of Former NLRB Acting General Counsel

On March 21, 2017, the U.S. Supreme Court affirmed the D.C. Circuit’s holding that Lafe Solomon, who was appointed by former President Barack Obama to serve as acting general counsel to the NLRB in June 2010 when the prior general counsel resigned his position, was prohibited by the Federal Vacancies Reform Act (FVRA) from continuing to serve in that role following his January 5, 2011 nomination to the general counsel position. The decision in NLRB v. SW General does not invalidate all NLRB decisions issued during Solomon’s tenure, and it is not comparable in scope to the Court’s 2014 decision in Noel Canning.

Solomon’s Service Violated Federal Law: Supreme Court Rules on Acting NLRB General Counsel Dispute

On March 21, 2017, the Supreme Court of the United States ruled that the Federal Vacancies Reform Act of 1998 (FVRA) prevents a person nominated to fill a vacant office requiring presidential appointment and Senate confirmation from performing the duties of that office in an acting capacity.

Supreme Court Rules that Former Acting NLRB General Counsel Became Ineligible to Perform Duties After President Obama Nominated Him for Permanent Position

Executive Summary: The U.S. Supreme Court has held that Lafe Solomon did not validly serve as Acting General Counsel for the National Labor Relations Board (NLRB) after former President Barak Obama nominated him to permanently fill that position in January 2011. See National Labor Relations Board v. SW General Inc., No. 15–1251 (March 21, 2017) (6-2). According to the Court, the provisions of the Federal Vacancies Reform Act (FVRA) precluded Solomon from serving as acting General Counsel after his nomination.

Supreme Court Rules President’s Power to Make Temporary Appointments is Limited

Former National Labor Relations Board Acting General Counsel Lafe Solomon’s continuing to serve as Acting NLRB General Counsel after President Barack Obama nominated him to the General Counsel position violated the Federal Vacancies Reform Act of 1998, the U.S. Supreme Court has decided in a 6-2 decision. National Labor Relations Board v. SW General, Inc., dba Southwest Ambulance, No. 15-1251 (Mar. 21, 2017).

Unions Winning More Elections, But Organizing Fewer New Workers

Unions won 72% of all representation elections conducted by the National Labor Relations Board in 2016, and 74% when the election involved a small unit of 49 workers or less, according to a Bloomberg BNA report based on NLRB data. These percentages are a four-year high for unions. At the same time, fewer workers were organized — 57,800 (lowest in four years), down from 63,300 new members in 2015.

Supreme Court Uses Labor Case To Again Stifle Presidential Power

In a decision released today, a 6 to 2 majority of the Supreme Court restricted the president’s power to fill high-level administrative positions without the Senate’s advice and consent, handing a victory to an employer in a labor dispute. The decision has wide-ranging implications for this and future presidents’ ability to choose nominees for important positions in administrative agencies such as the National Labor Relations Board (NLRB), and continues a recent trend of limiting presidential power recently seen in the Court’s June 2016 immigration decision.

NLRB’s New Joint Employer Standard Receives Chilly Reception During Court of Appeals Hearing

The National Labor Relations Board’s new, expanded “joint employer” standard faced sharp criticism during oral argument at the United States Court of Appeals for the District of Columbia Circuit.

House Bill Spotlights Paid Union Activities By Federal Employees

A House bill would require federal agencies to report annually on the amount of “official time” (i.e., taxpayer-paid time) that federal employees spend on union activities rather than working at their regular job duties. H.R. 1293 (the “Official Time Reform Act of 2017”) was introduced by Rep. David Ross (R-Fla.) on March 1, 2017, and reported out of the House Committee on Oversight and Government Reform on March 8.

Oral Arguments Held in Browning-Ferris International v. NLRB

On Thursday, March 9, 2017, the U.S. Court of Appeals for the District of Columbia Circuit held long-awaited oral arguments in Browning-Ferris International v. NLRB. The case will be critical in defining joint employment under the National Labor Relations Act, and could have significant ramifications throughout the business community.

Blowin' in the Wind? The Evolution of a Balanced Analysis of Workplace Policies by the NLRB

On February 24 , 2017, a two-member majority (Members Mark Gaston Pearce and Lauren McFerran) of the National Labor Relations Board, over the dissent of Acting Chairman Philip Miscimarra, struck down yet another handbook policy in Cellco Partnership d/b/a Verizon Wireless, 365 NLRB No. 38 (2017). The fact that following the 2016 elections the former Board still retains a 2-1 majority, with two Board vacancies to fill, is frustrating enough. But using that majority to apply the Board's current case law under Lutheran Heritage Village-Livonia, 343 NLRB No. 646 (2004), and standards under Purple Communications, 361 NLRB. No. 126 (2014)—which almost surely will change when the Board attains a new majority—adds insult to injury. A new Board is widely expected to reverse or significantly modify current Board law regarding the "chilling" of concerted activity by isolated employee handbook statements (Lutheran Heritage) and the right of employees to use company email at work for non-business purposes to solicit unionization and engage in other concerted activities (Purple Communications). The question is when will that occur? In the meantime, current NLRB General Counsel Richard Griffin will continue to issue complaints and advance cases under the law as interpreted by the former Obama Board. Griffin's term expires in November of 2017.