Federal Judge Benjamin Settle ruled on Aug. 13, that National Labor Relations Board general counsel Lafe Solomon was unconstitutionally appointed to his position. It was the latest example of the judicial branch pushing back against President Obama’s use of recess appointments to bypass the Senate confirmation process.
Settle ruled that the NLRB lacked the standing to charge a Washington state business called Kitsap Tenant Support Services Inc. with unfair labor practices. The judge found that Solomon’s appointment was not valid under the Federal Vacancies Reform Act. That law only allows the appointment of people who have “served as a personal assistant to the departing official” within the prior year. That wasn’t the case with Solomon, whose office had initiated the case against Kitsap.
Solomon has served as the NLRB’s acting general counsel since June 2010, when Obama recess appointed him. The position officially requires Senate approval but Solomon never obtained it. Unlike the similar cases involving NLRB boardmembers, this attracted little attention. General counsel is a lower-profile appointment.
The ruling also potentially undermines President Obama’s effort to install former NLRB board member Richard Griffin as Solomon’s replacement as general counsel. Griffin lost his nomination for a second board term in July because Senate Republicans objected, saying his original recess appointment tainted him.
Obama picked Griffin, a former top lawyer to the International Union of Operating Engineers, as a favor to Big Labor. The president presumably thought he could bypass the Senate again and appoint Griffin the same way he did Solomon. The Aug. 13 ruling indicates that may no longer be an option.
Three separate appeals courts have previously ruled as unconstitutional Obama’s use of recess appointments to fill vacancies on the five-member NLRB, which enforces federal labor laws. Settle’s ruling was the first to apply the same standard to the top positions on the NLRB staff as well.
The rulings on the NLRB members have thrown into doubt the legitimacy of the board’s actions throughout the Obama administration. Because the appointments were subsequently deemed invalid, the NLRB lacked a valid quorum to act for most of that period.
The Supreme Court is set to take up the matter. A decision may come in October.
The Senate did finally confirm a five-member board on Aug.12, but that does not retroactively make the board’s prior actions valid.
The Aug.13 ruling on Solomon raises the same questions regarding the NLRB’s general counsel. The office acts independently of the main board, capable of initiating actions on its own.It also oversees the NLRB’s regional offices. Many cases are settled before they even reach the board level. All from June 2010 forward are now potentially challengeable in court.
NLRB spokesman Gregory King decline to comment on the ruling to the Washington Examiner.
Fred Wszolek, spokesman for the pro-business Workforce Fairness Institute applauded the court’s action.
“We are once again confronted with a situation where an appointment to the National Labor Relations Board has been found to be unlawful. The question this time is whether the federal agency will honor the court’s decision or ignore it as has been the case in the past?” Wszolek said in a statement.