Once again, due to President Obama’s actions, the U.S. Supreme Court must settle a dispute involving the appointment of an officer at the National Labor Relations Board (NLRB).
The case here is SW General v. NLRB, involving a challenge to the actions taken by former NLRB Acting General Counsel Lafe Solomon, when he was in that role from 2010-2013. Solomon, a longtime NLRB employee had been a thorn in the side of employers to say the least. It was Solomon who pursued an unfair labor practice case against Boeing for having the audacity to open a new assembly line in right-to-work South Carolina.
Under the Constitution, “Officers of the United States” are nominated by the president “by and with the Advice and Consent of the Senate.” The position of NLRB general counsel is a position that per the National Labor Relations Act falls into this category, requiring a presidential nomination and confirmation by the Senate.
In June of 2010, Obama designated Solomon as the NLRB’s acting general counsel and subsequently nominated him to fill the position permanently. Thus Solomon was both the “acting” and the nominee for the position. The Senate, not approving of Solomon’s activities declined to confirm him.
Solomon continued in his “acting” position based on a reading of the Federal Vacancies Reform Act that the U.S. Court of Appeals for the District of Columbia Circuit held to be invalid. Under the act, persons who are serving in one of three types of positions can be named as an “acting” officer for a position requiring Senate confirmation. These include certain senior-level officials, the first assistant to that position, and other persons currently in positions which require confirmation.
Solomon, when he was designated “acting,” was a senior-level official, but was not the first assistant nor was he serving in a position requiring confirmation.
The D.C. Circuit, in interpreting the act, held that because Solomon was not the first assistant he could not continue to hold the “acting” position while also being the nominee. This is the statutory interpretation issue the Supreme Court will decide.
The general counsel in many ways acts as the agency head. The general counsel decides what cases are brought before the NLRB. He also serves as the NLRB’s lawyer in litigation.
The general counsel’s exclusive, unreviewable power to bring or not bring unfair labor practice cases means that he alone holds the keys to the “temple of justice” in these cases. If the counsel doesn’t want to bring a case then the injured party is left without recourse.
Given the position’s outsized power, it is imperative that the president follow the law when making an appointment here. Solomon’s case is, of course, not the first time that the Supreme Court has been forced to reverse Obama’s actions involving NLRB appointments. In 2014, the court held that Obama’s appointment of three NLRB members in a supposed short “recess,” during which the Senate met in pro forma sessions, was invalid.
At oral arguments in the current case on Nov. 7, the justices seemed divided over whether Solomon lawfully continued in the position of acting general counsel after he was nominated to fill the position permanently.
Given the Supreme Court’s current status with eight members, a split decision could occur which would operate to affirm the D.C. Circuit’s holding. An “affirmance,” in the legal jargon, would mean that the unfair labor practice case brought against SW General would be dismissed. While the D.C. Circuit noted that its decision would not open the floodgates for new cases, it is possible that a few other cases are pending that will be affected by the court’s ultimate decision.
Looking forward, the president will also be required to be more careful in selecting who is nominated for positions because in some instances that person will not be allowed to fill the position while their nomination is pending. A decision is expected before the court’s term ends in June 2017.
Regardless of how the case is decided, the NLRB is out of control and the president’s actions with respect to it have not fared well in the courts. This presents a good opportunity for Congress to take a hard look and consider paring back its authority, reclaiming power that the agency has abused for the last several years.
Nathan Mehrens is President of Americans for Limited Government Foundation.
