Boeing Complaint: Hatch Challenges Appointment, Authority of NLRB’s General Counsel

President Obama skirted federal law and established procedures to appoint Lafe Solomon to serve as Acting General Counsel of the National Labor Relations Board, Sen. Orrin Hatch (R-UT) charged this week, calling on the President to withdraw Solomon’s appointment in the wake of the NLRB’s unjustified and economically disastrous complaint against The Boeing Company.

Hatch took to the Senate floor Thursday to dissect and denounce the NLRB’s complaint against Boeing for locating new assembly facilities in South Carolina instead of Washington State.  In a lengthy statement (available here), the Utah Republican analyzed the NLRB’s contravention of federal law labor, warned of the competitive consequences of bureaucrats making facility-siting decisions, and criticized the Obama Administration for putting the interests of organized labor before the nation’s.

NLRB's Lafe Solomon

Hatch also challenged the validity of President Obama’s June 21, 2010, appointment of Solomon to serve as Acting General Counsel, arguing that the President ignored the established procedures for such appointments under the National Labor Relations Act (NLRA). Instead, Hatch said, the President made Solomon his personal acting general counsel under “the more generous terms” of the Federal Vacancies Act, which is intended to apply to government vacancies in general.

Why did the President take this unusual step? Hatch:

Under the Vacancies Act, Mr. Solomon is allowed to stay in the job in an acting capacity, without Senate approval, for an initial 210 days—rather than the 40 days provided under the National Labor Relations Act—and then be reappointed again for another 210 days, and a third time for yet another 210 days, until the end of President Obama’s term.

This is yet another example of the President end running the law in order to ensconce in office individuals who would have a difficult time surviving the constitutionally required confirmation process—a process that ensures the people and their representatives have some meaningful oversight of the appointee.

Solomon filed the NLRB complaint against Boeing on April 20, acting in support of the International Association of Machinists and Aerospace Workers, which represents workers at Boeing’s Washington facilities. Given the timing cited by Sen. Hatch above, Solomon’s appointment as Acting General Counsel should have expired on July 31, 2010, depriving Solomon of the authority to take the later action against the airplane manufacturer.

Hatch’s analysis carries extra weight because of the Senator’s status as a senior member on both the Senate Health, Education, Labor, and Pensions Committee — which oversees the National Labor Relations Act — and the Senate Judiciary Committee. In challenging Solomon’s authority, the Senator also reinforces an argument made by Boeing in its defense.

Boeing’s formal response to the NLRB filed on May 4 challenges Solomon’s status, the 14th and final item in the list of the company’s defenses: “The Complaint is ultra vires because the Acting General Counsel of the NLRBdid not lawfully hold the office of Acting General Counsel at the time he directed that the Complaint be filed.” Ultra vires means outside of one’s authority.

Hatch continued:

So why did no one complain about this appointment before now? I suppose some should have. I suppose after the battle over the nomination of AFL–CIO and SEIU Associate Counsel Craig Becker to the NLRB, many were convinced they could do a lot worse than having a career NLRB civil servant serve as acting general counsel. I am not so sure anyone feels that way now.

In fact, in light of his recent actions, including the Boeing complaint, it is hard to conceive of a worse choice for acting general counsel.

That decision should be revisited. That is why I am writing to President Obama to request that he withdraw the appointment of Mr. Solomon.

President Obama should also withdraw Solomon’s nomination to serve as NLRB counsel, Hatch argued, as “it is difficult to imagine” Solomon ever being confirmed by the U.S. Senate.

An Administrative Law Judge is scheduled to hear the Boeing complaint on June 14, and lengthy litigation seems likely to follow. If at any point, Solomon’s continued service as Acting General Counsel is ruled to be illegitimate, not only would the board’s complaint be tossed out, all the NLRB decisions made since the true July 31 expiration date of Solomon’s acting appointment would be cast in doubt.

Hatch closed with an economic and political argument:

Government actions such as the ones we have seen with the Boeing complaint are debilitating to our economy at a time when we are struggling to recover from one of the Nation’s worst recessions since the Great Depression. Such bureaucratic decisions cost jobs at a time when we are struggling to reduce unemployment. They delay business decisionmaking and interfere with competition. They undermine business confidence in government. Why should companies invest in expanding business in the United States if, with the drop of a hat, a Federal bureaucrat can simply reverse that decision
and destroy that investment?

At this point, we are left scratching our heads. Why would the acting general counsel do this outrageous act?

Unfortunately, the answer appears to be that the decision to issue the complaint was a political one designed to placate an important ally of the President’s — organized labor. That answer, while unacceptable, is the only logical answer.

For more, see the Senator’s news release.

Join the discussion 4 Comments

  • Jim Kennedy says:

    Senator Hatch needs to examine the actual facts.

    First, Solomon is the “acting” general counsel, appointed when the Senate-approved general counsel resigned.

    Seconds, Solomon authorized the complaint against Boeing only after thoroguhly vetting the entire matter, even inviting Boeing’s general counsel to provided input.

    The complaint, available on-line at the NLRB’s website (as well as its legal analysis) simply accuses Boeing of telling its Everett Washington union that the work would not go to it because of its history of striking–which is protected by law. The evidence of this statement and its motive can be found in a number of places where Boeing admitted those facts. That’s an admission of an unfair labor practice. Solomon and his staff can’t ignore that admission; if they did, they wouldn’t be doing their job.

    The remedy is similar to the remedy in old fashioned runaway shop cases–resume the status quo, meaning the work stays in Everett.

    And while it may sound hollow to some, that remedy does not prohibit Boeing from making non-discriminatory decisions to open plants in South Carolina or anywhere else.

    Had Boeing not made these statements, no complaint would have issued. If the admissions are actually meaningless, in June Boeing can persuade an administrative law judge and the Board itself of their inconsequential nature at the hearing on the complaint.

  • Jack says:

    The question should be “is this circumvention of constitutional advise and consent an impeachable offense by President Obama?”

  • Jim says:

    Tell Sen. hatch that if the senate would get off it’s lazy asses and and just vote on the appointments then maybe things might be better. This is what happens when senators threaten fill a buster instead of doing the job they were elected to do. That is voting on the issues.

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