The NLRB's Oversight Loophole

Posted: Jun 26, 2013 12:01 AM

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.”

The irony of a “completely independent” Board’s Chairman writing to employees in the Office of General Counsel is second only to the lament that Liebman’s e-mail constitutes an admission that she knew her conduct was inappropriate. Perhaps worst of all is the fact that the “independent” IG didn’t seem to care. Following the IG’s investigations into Terence Flynn and Brian Hayes, IG Berry found that Terence Flynn engaged in improper ex parte communications and stated in a March 15, 2012, deposition that “If I have evidence other people are engaging in this type of conduct, we would look at other individuals. . . . you would have to have some basis to believe that it is happening with other individuals. We haven’t.” Berry made this statement despite Cause of Action informing him of Liebman’s misconduct four months prior to the deposition. IG Berry is either incompetent or a liar.

On December 7, 2012, we wrote to Associate Attorney General Tony West asking him to investigate why the NLRB IG failed to promptly investigate credible allegations of misconduct occurring within the agency. On February 28, 2013, M. Kendall Day, the Deputy Chief of DOJ’s Public Integrity Section, responded “OIG reports to NLRB’s chairman. If you are not satisfied with OIG’s response, you may wish to forward your complaint to Mark. G. Pearce, Chairman, National Labor Relations Board[.]”

If the IG reports to the NLRB Chairman, then who oversees the NLRB Chairman? The answer, implicit in DOJ’s response: no one. And hence, the problem Congress didn’t consider about an executive branch agency that separates its prosecutorial function from its judicial one -- the IG only oversees one of those departments, he has no authority to oversee the actual Board. The NLRB Board is a federal department without an IG. If the IG failed to investigate the Board, it is simply because he had no authority to do so. For former Chairman Liebman, sending substantive e-mails to lawyers who argue before her is par for the course: no oversight means no risk.

So when the Supreme Court hears NLRB v. Canning during its next term and determines whether the President exceeded his constitutional authority, Congress should also consider establishing an Office of Inspector General independent of and with oversight over the Board. Otherwise, the Supreme Court battle does little to deter the misconduct in which the Board can engage, scot-free.