This week, the U.S. Supreme Court announced it would review whether President Obama exceeded his constitutional authority when he appointed members to the National Labor Relations Board (NLRB) in January 2012 without Senate confirmation.
This decision follows last month’s ruling by the U.S. Court of Appeals for the Third Circuit which determined that the President exceeded his authority in making recess appointments to the NLRB during the Senate’s two week adjournment in 2010 -- the third appellate court to do so. But amongst the attention on the recess appointments to the Board, virtually no scrutiny has been made of the fact that Acting General Counsel Lafe Solomon -- the NLRB’s chief enforcer of unfair labor practices -- was himself a recess appointment.
Lafe Solomon is not without inspection, yet there fails to exist a proper authority over him. House Education and Workforce Committee Chairman John Kline requested on April 13, 2012 that David Berry, the Inspector General of the NLRB, “commence an investigation to determine whether … Lafe Solomon or his staff made any prohibited ex parte communications regarding the Boeing case, 19-CA-32431.” Three days later, IG Berry opened an investigation and concluded seven months later that three Office of General Counsel employees engaged in prohibited ex parte communications (the sorts of things that get judges and lawyers disbarred) but found such misconduct “inadvertent.”
Irrelevant to the IG were e-mails former NLRB Chairman Wilma Liebman received, where Solomon stated “we want [Boeing] to keep using the main line and the surge line building planes in Seattle” – as if that position was not relevant to any dispute that would come before the Board. And the misconduct was mutual -- Liebman authored an e-mail, received by Solomon, stating “I think [Ellen Farrell, the Deputy Associate General Counsel] misses the political point that is lurking here: the difference . . . is of course between issuance of a complaint and a ruling, but most certainly it is also about the complete independence of the General Counsel and the Board itself.”
Dan Epstein is Executive Director of Cause of Action, a non-partisan organization that uses public advocacy and legal reform tools to ensure greater transparency in government, protect taxpayer interests and promote economic freedom.
Prior to joining Cause of Action, Epstein served at the U.S. House of Representatives for several years as a Counsel for Oversight and Investigations at the Committee on Oversight and Government Reform. He was the lead counsel on tax, labor, nonprofit and federal grant spending investigations and oversight and his prominent investigations concerned the Association of Community Organizations for Reform Now, the Service Employees International Union, the National Labor Relations Board, and the National Mediation Board.
Before his Hill experience, Epstein worked on legal reform issues in the private sector. He graduated with honors from Kenyon College in Gambier, Ohio, where he was Editor-in-Chief of The Kenyon Observer, a Felix Morley National Journalism Finalist, and a Walter Judd Scholar at the Institute on Political Journalism, Georgetown University. Epstein received his law degree from Emory University in Atlanta, Georgia and is a member of the Maryland State Bar Association and the Federal Bar Association. He is an Eagle Scout and President’s Volunteer Service Award winner.