High court considers appointment of labor official

By Sam Hananel
Associated Press

WASHINGTON (AP) - The Supreme Court will consider whether a former top lawyer at the National Labor Relations Board served in violation of a federal law governing temporary appointments.

The justices agreed Monday to review a lower court ruling that said Lafe Solomon should not have served as the temporary general counsel of the agency that enforces labor laws while he was at the same time nominated to fill that role permanently.

The Obama administration says the appeals court ruling last year has created "confusion and uncertainty" as some members of Congress have questioned the legitimacy of nominations for secretary of the Army, undersecretary of Defense for Personnel Readiness and other pending nominations.

President Barack Obama named Solomon acting general counsel in June 2010 and he held the office until November 4, 2013. But he was never confirmed by the Senate.

An Arizona-based ambulance company accused of unfair labor practices argued that Solomon was serving in violation of the Federal Vacancies Reform Act. The U.S. Court of Appeals for the District of Columbia Circuit sided with the company, SW General, Inc.

The vacancies law says that once an official is nominated for a post requiring Senate confirmation, that person can't serve in the same position on a temporary basis. Congress passed the law to prevent presidents from circumventing the Senate's authority and appointing people to serve indefinitely in an acting capacity.

There is an exception if the nominee had served as a "first assistant" to the person who previously held the office. The Obama administration argues that other senior officials also can be chosen as temporary fill-ins even if they are also formally nominated for the position.

The NLRB came under scrutiny in 2014 when the Supreme Court ruled that Obama's recess appointment of three NLRB members violated the constitution. That ruling invalidated hundreds of NLRB rulings and forced the agency to reissue those decisions.

The scope of the current case seems more limited because the appeals court said it did not expect its decision "to retroactively undermine a host of NLRB decisions."

Published: Wed, Jun 22, 2016