National Labor Relations Board v. SW General, Inc

March 21, 2017 by Justia

The Constitution requires that the President obtain “the Advice and Consent of the Senate” before appointing “Officers of the United States” (PAS officers). The Federal Vacancies Reform Act of 1998 (FVRA), section 3345(a), provides in paragraph (1), that generally, if a PAS vacancy arises, the first assistant to that office “shall perform” the office’s “functions and duties temporarily in an acting capacity,” but “notwithstanding paragraph (1),” the President “may direct” a person already serving in another PAS office, or a senior employee in the agency, to serve in an acting capacity. Subsection (b)(1) states: “Notwithstanding subsection (a)(1), a person may not serve as an acting officer” if the President nominates him for the vacant PAS office and, during the 365-day period preceding the vacancy, the person “did not serve in the position of first assistant” or “served . . . for less than 90 days.” The National Labor Relations Board's general counsel is a PAS office. In June 2010, a vacancy arose in that office. The President directed Solomon to serve as acting general counsel. Solomon qualified under subsection (a)(3) as an NLRB senior employee. In January 2011, the President nominated Solomon to serve as permanent general counsel. The Senate never took action on the nomination. Meanwhile, an NLRB Regional Director, acting on Solomon’s behalf, issued a complaint against SW. An ALJ and the Board concluded that SW had committed unfair labor practices. SW argued that the complaint was invalid because, under subsection (b)(1), Solomon could not act as general counsel after being nominated to that position. The NLRB countered that subsection (b)(1) applies only to first assistants acting under subsection (a)(1), not to officers who serve under (a)(2) or (a)(3). The DC Circuit vacated the Board’s order. The Supreme Court affirmed. Subsection (b)(1) prevents a person who has been nominated to fill a vacant PAS office from performing the duties of that office in an acting capacity and is not limited to first assistants acting under subsection (a)(1). View "National Labor Relations Board v. SW General, Inc" on Justia Law