How Will the High Court Approach NLRB v. SW General?


Steven M. Swirsky and Laura C. Monaco, attorneys in the Employment, Labor & Workforce Management practice, in the firm’s New York office, authored an article in Law360 titled “How Will the High Court Approach NLRB v. SW General?(Read the full version – subscription required.)

Following is an excerpt:

When the D.C. Circuit issued SW General, it made clear that it intended the holding to be a narrow one: Acting General Counsel Solomon served in violation of the FVRA as of the date the president nominated him to be general counsel. Indeed, the circuit expressly stated that its decision was “not the Son of Noel Canning” — a reference to the Supreme Court’s decision in Noel Canning v. NLRB, which resulted in the retroactive invalidation of hundreds of board decisions. This is partly because, as noted above, the NLRB general counsel is exempt from the FVRA’s general rule that actions taken by acting officers serving in violation of the statute are void and cannot be ratified.

Thus, any FVRA defect in an acting general counsel’s authority to take action can be cured if a subsequent, properly serving general counsel ratifies his actions. In addition, the circuit made clear that it addressed the FVRA issue only because the employer had timely preserved and raised that objection early in the proceedings.

This article is an expanded version of a blog post Mr. Swirsky and Ms. Monaco authored for Management Memo, an Epstein Becker Green blog.