Judge Strikes Down Obama’s ‘Improper’ NLRB Recess Appointment

August 23, 2013 - 4:01 PM

Lafe Solomon

Lafe Solomon, former acting general counsel for the National Labor Relations Board. (AP Photo)

(CNSNews.com) – A federal judge struck down one of President Obama’s highly controversial recess appointments to the National Labor Relations Board (NLRB).

U.S. District Judge Benjamin Settle ruled in a case involving a Washington State firm charged with unfair labor practices that that “the Board is without power to act because it lacks a properly appointed quorum.”

On August 12, four new NRLB members appointed by President Obama and confirmed by the Senate were sworn-in, but Settles' August 13th decision invalidates all previous actions taken by Obama’s recess appointees.

In July, Obama was forced to withdrew his 2012 “recess” appointees, Sharon Block and Richard Griffin, because they were named to the NLRB while the Senate was still in session and their appointments were subsequently ruled unconstitutional in federal court.

Obama named Lafe Solomon acting general counsel in 2010, then re-nominated him as the agency’s top lawyer in 2011 and 2013, although he was never confirmed by the Senate. (See NLRB press release.pdf)

But Settle ruled that Solomon’s appointment was invalid because the Federal Vacancies Reform Act requires that the appointee serve “as a personal assistant to the departing officer” within the year prior to the appointment, which  Solomon did not do.

The ruling “recognizes what the NLRB has failed to acknowledge: that former acting general counsel Lafe Solomon’s authority was questionable and came at an extreme cost to America’s job creators, like Boeing and Wal-Mart,” Dan Epstein, executive director of government accountability organization Cause of Action, commented.

Solomon came under fire by business groups after filing a 2011 complaint against Boeing, claiming that the aviation giant’s opening of a production plant in right-to-work South Carolina was an improper response to threats of a strike by its unionized employees in Washington State.

Judicial Watch released documents revealing emails about a deal the NLRB offered Boeing, in which it would drop the complaint if Boeing agreed not to lay off unionized workers. The union employees were later granted a contract extension and the complaint was formally withdrawn.

Last year, the NLRB’s Office of the Inspector General reported on a conflict of interest case involving Solomon, who held a substantial amount of Wal-Mart stock but participated in a decision on whether to file a complaint against Wal-Mart’s social media policy.

NLRB personnel polices prohibit individuals “from participating personally and substantially” in matters in which they have a financial interest.

Noting that “The DOJ can bring criminal or civil actions against Solomon,” Cause of Action condemned the OIG’s decision not to hold Solomon accountable because of “defects in the ethics process at the NLRB."