Supreme Court Uses NLRB Case to Limit Presidential Power

Author: David B. Weisenfeld, XpertHR Legal Editor

March 23, 2017

The US Supreme Court has ruled that then President Obama exceeded his authority in allowing Lafe Solomon to serve as the National Labor Relations Board's (NLRB's) interim general counsel while he was awaiting Senate confirmation for the permanent general counsel position. The ruling is significant in that it could apply to any future temporary agency appointments that President Trump might consider.

The Court found 6-2, in NLRB v. Southwest General, Inc., that President Obama erred in naming Solomon on an interim basis, a maneuver that allowed Solomon to serve for nearly three additional years before his nomination was withdrawn. Writing for the Court, Chief Justice John Roberts noted that the Federal Vacancies Reform Act prohibits certain persons from serving as acting officers if the President has nominated them to fill the vacant office permanently.

Obama first appointed Solomon as general counsel on an interim basis in 2010. A few months later, he nominated him to fill the permanent position. The Court found that once the President submitted the nomination he was prohibited from having Solomon continue in the acting general counsel role.

Chief Justice Roberts said this nomination did not mean that the NLRB general counsel's duties needed to go unperformed. He noted, for instance, that the President could have appointed another person to serve in the interim role in Solomon's place.

The case came about when an NLRB regional director, acting upon Solomon's recommendation in 2013, issued an unfair labor practices complaint against Arizona-based Southwest General for stopping bonus payments to longtime employees. The company claimed that Solomon's appointment was invalid and that the complaint should be voided.

As a result of the Court's ruling, employers may wish to revisit cases Solomon worked on in his capacity as the NLRB's interim general counsel from January 2011 to October 2013, the time period within which his nomination for the permanent role was pending.