Supreme Court: Obama Exceeded Authority with Interim General Counsel Appointment

Last week, the U.S. Supreme Court ruled 6-2 that President Obama exceeded his authority in allowing Lafe Solomon to serve as the National Labor Relations Board (NLRB) interim general counsel while awaiting confirmation to the permanent post by the Senate. NLRB v. SW General, Inc. (U.S. 2017). Solomon’s interim posting resulted in his serving nearly three additional years, even though his nomination was ultimately withdrawn. Once President Obama submitted the nomination for the permanent position, the Court held, Solomon could no longer continue as acting general counsel.

The case arose when the NLRB in 2013 issued an unfair labor practices complaint against SW General, an Arizona-based ambulance service, for stopping bonus payments it made to certain employees. The company argued that Solomon’s appointment was invalid, and therefore, the complaint was also invalid.

Employers may wish to review cases Solomon may have overseen as interim general counsel from January 2011 to October 2013, when his nomination for the permanent role was pending.