01-30305. Revision of Statement of Organization and Functions; Position of Deputy General Counsel

AGENCY:

National Labor Relations Board.

ACTION:

Revision of the description of the powers and duties of the Deputy General Counsel.

SUMMARY:

The National Labor Relations Board is revising the description of the powers and duties of the Deputy General Counsel to make plain that the Board's Deputy General Counsel is authorized to perform the functions and duties of the office of General Counsel upon the vacancy of the General Counsel's office.

EFFECTIVE DATE:

December 6, 2001.

FOR FURTHER INFORMATION CONTACT:

John J. Toner, Executive Secretary, 1099 14th Street NW., Room 11600, Washington, DC 20570, Telephone: [phone].

SUPPLEMENTARY INFORMATION:

The National Labor Relations Board has determined that § 3345(a)(1) of the Federal Vacancies Reform Act of 1998, 5 U.S.C. 3345 et seq., authorizes the Board's Deputy General Counsel to perform the functions and duties of the office of General Counsel, upon the vacancy of the General Counsel's office. In pertinent part, § 3345(a) provides:

If an officer of an Executive agency * * * whose appointment to office is required to be made by the President, by and with the advice and consent of the Senate, dies, resigns, or is otherwise unable to perform the functions and duties of the office—

(1) The first assistant to the office of such officer shall perform the functions and duties of the office temporarily in an acting capacity subject to the time limitations of section 3346.

Historically, the provisions of section 3(d) of the National Labor Relations Act (29 U.S.C. 153(d)) have been the only mechanism for appointments to the position of Acting General Counsel. The Vancies Act is an alternative means of filing vacancies in positions appointed by the President subject to Senate confirmation, but, until 1988, that statute was applicable only to positions in cabinet departments. By amendment in 1988, Congress made the Vancies Act applicable to all “executive agencies,” with the intent of expanding the scope of the statute to independent agencies such as the Board. Thus, although NLRA section 3(d) remains a valid mechanism for appointment to the position of Acting General Counsel, it is now clear that the Vacancies Act provides an alternative procedure and that the President can appoint an Acting General Counsel under that Act, under section 3(d) of the NLRA, or can allow the provisions of section 3345(a) to take effect.

The Deputy General Counsel position is a “first assistant” position within the meaning of 5 U.S.C. 3345(a)(1). Although “first assistant” is not expressly defined in the statute, it was referred to in debate as a term of art that generally refers to the office holder's top deputy. The National Labor Relations Board's Statement of Organization and Functions makes clear that the Deputy General Counsel acts as the alter ego of the General Counsel and readily satisfies the functions of a “first assistant:” “The Deputy General Counsel is vested with the authority to speak and act for the General Counsel in all phases of the responsibilities of the office to the full extent permitted by law * * *”

Accordingly, the National Labor Relations Board is revising its statement of Organization and Functions, part 201, subpart A, section 202, second paragraph (32 F.R. 9588, as amended by 37 F.R. 15956, 44 F.R. 32415) to read as follows:

Sec. 202 The General Counsel.

* * * * *

The Deputy General Counsel is vested with the authority to speak and act for the General Counsel in all phases of the responsibilities of the office to the full extent permitted by law and is responsible for overall coordination of the General Counsel's organization. The Deputy General Counsel position is a “first assistant” for purposes of section 3345(a)(1) of the Federal Vacancies Reform Act. References to the General Counsel hereinafter may refer to either the General Counsel or Deputy General Counsel collectively.

* * * * *

Dated, Washington, DC, December 3, 2001.

By direction of the Board.

John J. Toner,

Executive Secretary, National Labor Relations Board.