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Increased challenges among NLRB appointments

Court says board’s GC Lafe Solomon was improperly appointed

As if the National Labor Relations Board didn’t have enough problems to contend with internally, earlier this month a judge added one more.

A federal court determined that NLRB Acting General Counsel Lafe Solomon was not properly appointed to his position. The decision raises even more questions regarding the validity of some of the agency’s actions in the past few years.

In his ruling, Judge Benjamin Settle said President Obama’s appointment didn’t comply with the Federal Vacancies Reform Act , which mandates that a GC can only be appointed under such circumstances if the appointee has served as a personal assistant to the departing general counsel within the prior 365 days. Solomon did not meet that criterion.

The decision over Solomon’s appointment only adds to the recent controversy regarding NLRB appointments under the Obama administration.

In January, the D.C. Circuit ruled in Noel Canning v. NLRB that Obama’s appointments of Sharon Block, Richard Griffin and Terence Flynn to the NLRB were unconstitutional because they were made while the Senate was in recess. The decision, if it stands, could invalidate the board’s decisions and rulemaking stretching back to at least January 2012—when Obama made the appointments—because the five-member board would not have had the quorum necessary to make decisions.  On June 24, the Supreme Court agreed to hear the case during its fall term. Then on May 16, the 3rd Circuit found the appointment of former NLRB member Craig Becker invalid for the same reason. 

For more about this story, see Littler Mendelson’s release and the WSJ Law Blog’s post.

Read more recent stories regarding the NLRB on InsideCounsel:

Labor: NLRB says employers cannot ban employee talks of workplace investigations

NLRB and Mexico sign cooperation agreement

Richard Griffin Jr. nominated as GC of NLRB

Cheat Sheet: A guide to the NLRB recess appointment controversy

Labor: How the NLRB analyzes handbooks and policies


Cathleen Flahardy

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