As the new Supreme Court term gets ever closer, we can start to see how the upcoming months might play out: some intriguing criminal cases, important debates about race and the justice system, a fascinating free exercise issue involving used tires, and very little labor law.
Of the 31 cert petitions the Court has granted for the new term, only one directly involves labor and employment law issues: National Labor Relations Board v. SW General, over whether the NLRB's former acting general counsel could properly bring unfair labor practice complaints. It's a case dealing with arcane but important issues, with potentially significantly impacts not just the Board but the entire federal bureaucracy.
The Power to Appoint and the Ability to Act
SW General is the Court's second appointments case in two years, both involving the NLRB. It started as a dispute between an ambulance company in Arizona, SW General, and its workers, over their collective bargaining agreement's "longevity pay" provisions. The workers' union filed an unfair labor practices charge with the NLRB and the Board moved in, issuing a formal complaint.
The labor dispute was quickly eclipsed by questions regarding the validity of the Board's action. Southwest alleged that the ULP complaint issued against it was invalid, since then-acting general counsel for the NLRB, Lafe Solomon, was ineligible, under the Federal Vacancies Reform Act, to serve as acting GC once President Obama had nominated him to become general counsel. That is, that the acting officer was barred from acting once he was formally nominated to the office.
In 2015, the D.C. Circuit agreed, finding that a newly-appointed acting officer couldn't continue to act in that rule once he was nominated to permanently fill that vacant office, unless he had first served as an assistant for that office.
This is not exactly the sort of decision they turn in to courtroom dramas or John Grisham novels.
But it is important.
First, as the NLRB's petition for cert noted, it marked a drastic shift from the interpretation that all presidents since the FVRA passed had relied on. Second, it put into question actions taken during the almost three-year-long period in which Solomon was both acting GC and nominee for that position. (Solomon's nomination was eventually rescinded.) And, of course, if the D.C. Circuit's opinion stands, it could change how appointments are handled throughout the federal government.
Other Labor Law Cases the Court Could Take Up
SW General is scheduled for argument in early November, but it could have some new labor law company by that point. The Court is currently working through the cert petitions that it has collected over the summer, as part of the pre-term "long conference." That means new labor and employment law cases could join the Court's docket in upcoming days.
A few of those cases seem well-positioned for review. As Bloomberg's Kevin McGowan notes, the NLRB's stance that class action waivers in arbitration agreements violate the NLRA is a prime candidate for review, with a split between the circuits and three petitions before the Court.
Cases involving ERISA church plans and sex discrimination lawsuits are also possible candidates for cert, McGowan says. But until then, SW General will remain the sole, lonely employment law case on the Court's labor docket.