Court Strikes Down another Obama NLRB appointment

If you cant’ get legislation through Congress, then make policy through regulation. Until the courts get in the way. The former has been the Obama administration’s approach to implementing policies it wants but cannot get passed in Congress. The latter describes the latest legal setback to Obama’s agenda — a federal judge striking down Obama’s recess appointment of the National Labor Relations Board’s (NLRB) top lawyer as unconstitutional.

On August 13, U.S. District Judge Benjamin Settle ruled that President Obama’s appointment of NLRB Acting General Counsel Lafe Solomon did not conform to the requirements of the Federal Vacancies Reform Act (FVRA). Therefore, Solomon could not delegate to a regional NLRB director the authority to pursue legal action against an employer. In his decision (Hooks vs. Kitsap Tenant Support Services), Judge Settle said:

[NLRB Regional Director of the 19th Region Ronald K.] Hooks asserts that President Obama validly appointed Solomon pursuant to the Federal Vacancies Reform Act (“FVRA”), 5 U.S.C. § 3345, et seq. Dkt. 13 at 14–21. The FVRA, however, only permits the appointment of a person under specific circumstances and the only circumstance that could apply to Hooks is appointing a person who, within the last 365 days, has served as a personal assistant to the departing officer. Id. § 3345(b). It is undisputed that Solomon has never served as a first assistant.

And that’s not all. Judge Settle also said that the Board operated without a quorum, because three members were put on there through presidential “recess” appointments while the Senate was in session (as another court has found). Therefore, the Board’s actions during the period between Obama’s “recess” appointments (January 4, 2013) and those NLRB members’ confirmation by the Senate (July 16, 2013) are invalid.

Solomon has  still not been confirmed, and may be on his way out, but Obama could face another uphill battle for confirmation of Solomon’s replacement. During his time at the NLRB, Solomon has pursued a blatantly pro-organized labor agenda, including “a union-spurred complaint against Boeing Co. that riled not only Boeing but also Republicans and business groups” that was only dropped after the Machinists union approved a four-year contract extension with Boeing. Boeing’s alleged offense? Opening a plant in South Carolina, a right to work state.

Obama’s general counsel nominee is a union lawyer likely to pursue a similar course as Solomon. But getting on the Board will be a lot harder for him now. As the Washington Examiner‘s Sean Higgins notes:

Obama picked [NLRB member Richard] 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.

Judge Settle’s ruling puts a brake on the Obama NLRB’s zealous pro-union activism. But the agency has already done a lot of damage. Businesses that have been subject to actions by the illegally constituted Board and the illegally appointed acting general counsel should challenge those decisions in federal court.