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.
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. (continue reading…)