Justices to Hear NLRB Case on Filling Top Federal Job Vacancies

WASHINGTON—When Lafe Solomon had to go after the Boeing Company for its illegal retaliation against the Machinists by moving 787 Dreamliner production to anti-union South Carolina, was he really the National Labor Relations Board’s Acting General Counsel – its top enforcement officer – and thus had the power to do that?

That, in essence, is what the U.S. Supreme Court will hear arguments about on November 7, in the only labor case it has accepted so far this year.

Though NLRB v. Southwest General Inc. does not involve the Boeing-Machinists-NLRB fight itself, the case covers the same time period. And the court’s ultimate ruling could affect hundreds of workers’ cases, both under Solomon’s tenure and in the future. If the justices say so, that would retroactively include the Boeing case, too.

That’s because the justices will hear arguments on the arcane issue of when – and who – can be appointed an acting executive branch officer, such as the NLRB’s Acting General Counsel, when the office is vacant.

And if a person is in the office illegally, his or her decisions can be overturned, as Southwest General, an ambulance company, argued – and won, in the D.C. Circuit Court of

Appeals. But that panel’s ruling flies straight in the face of a 1998 law governing such vacancies, the Obama administration argues.

That law says a person who is first assistant in the office involved, or as a career official in an equivalent top post elsewhere for 90 days – as Solomon was – can become the “acting” chief of an office and still be nominated to the permanent job. That’s what Obama did with Solomon who, while acting NLRB General Counsel, had to sue Boeing for labor law-breaking.

The GOP-run Senate never confirmed Solomon as General Counsel. And Southwest General says that because Obama nominated him to the post, he couldn’t also be “acting.”

The case is important to workers, the AFL-CIO told the justices in a friend-of-the-court brief, because the General Counsel is the agency’s top enforcement officer. No General Counsel means little gets done, and ruling that an acting GC was illegal can also make his decisions illegal, too.

“This case concerns the extent of the president’s authority to direct a high-level career employee” of the NLRB – in this case, Solomon – “to temporarily perform the functions of” the General Counsel when the post is vacant, the federation explained.

“The General Counsel plays a crucial role in effective enforcement” of labor law and unions, workers and the AFL-CIO “have a vital interest in” that, the fed’s brief adds.

“The obvious purpose of” the 1998 vacancies law “is to prevent a president” from immediately installing someone as first assistant for a vacant office – such as NLRB General Counsel – and then simultaneously nominating that same person to the top job, it adds. The law sets out rules whom the president can install as an “acting” chief: At least 90 days of service as first assistant, or, as Solomon was, in a top career job elsewhere in the agency.

The D.C. Circuit disregarded all that in ruling Solomon’s appointment illegal in the Southwest General case, the fed said. Those judges said Solomon did not qualify. Nor would anyone else in similar circumstances, leaving the post utterly vacant, the fed’s brief added.

Source: PAI