On May 23, 2013, the Whitehouse announced that the President had again sent the nomination of Lafe Solomon, Acting General Counsel of the National Labor Relations Board, to the Senate, seeking confirmation to a four year term as NLRB General Counsel. Mr. Solomon was first nominated for the job on January 5, 2011, but his nomination never came up for a vote. It can be expected that Mr. Solomon’s nomination will receive significant opposition from Republican Senators over a number of issues including his decision to prosecute a complaint against Boeing over its decision to open a manufacturing plant in South Carolina rather than expand its plant in Puget Sound, Washington, where it had experienced labor problems and work stoppages in the past. Mr. Solomon has been Acting General Counsel at the NLRB since June 21, 2010, and began his career at the NLRB in 1972 as a field examiner.
On April 13, 2012, U.S. District Judge David C. Norton of the U.S. District Court for South Carolina, ruled in an action brought by the U.S. Chamber of Commerce and others that the National Labor Relations Board’s notice posting rule set to go into effect April 30, 2012, was “unlawful under the [Administrative Procedure Act] … 5 U.S.C. § 706….” This rule was applicable to all private employers subject to the National Labor Relations Act. The ruling conflicts with an earlier ruling by the U.S. District Court for the District of Columbia upholding in part the NLRB’s notice posting rule.
On July 19, 2011, in response to the NLRB’s issuance of complaint against Boeing arising out of Boeing’s decision to build a number of its new 787 Dreamliners in a non-union plant in South Carolina, a bill entitled The Protecting Jobs From Government Interference Act, H.R.2587, was introduced in the U.S. House of Representatives by Representative Tim Scott (R-SC). In part, it would amend the National Labor Relations Act so as to prohibit the NLRB from ordering any employer to relocate, shutdown or transfer employment under any circumstances, and would apply to all cases not yet fully adjudicated before the Board.
H.R. 2587 on September 15, 2011, passed the House of Representatives with a vote of 238 to 186. Those voting in favor included some 7 Democratic members of the House. Eight Republicans voted against the bill. Passage of this measure in the Democratically controlled Senate is doubtful at this time.
In an interview published on August 29, 2011, in the New York Times, former NLRB Chairman Wilma Liebman responded to critics of the Board during her recent tenure. “The criticism is grossly out of proportion to what has happened and what has been done. We knew we were going to have a boxing match, but we didn’t expect our opponents to come in with a baseball bat,” she said in the Times Reporter Steven Greenhouse’s interview.
Liebman’s term expired at midnight on August 27, 2011, leaving three members remaining on the five-member Board.
According to the New York Times’ article, “[c]onservative newsletters describe the presidentially appointed board as ‘Marxism on the march’ and its members as ‘socialist goons.’ Business groups denounce it as a handmaiden of union bosses, while Representative Michele Bachmann, a Republican presidential candidate, says she will shut down the agency if elected.” Greenhouse also reported that South Caroline Senator Lindsey Graham vowed that he would block any future Democratic nominees to the NLRB because of the pending NLRB case involving Boeing’s opening a plant inSouth Carolina.
In the interview, Liebman also was quoted as saying, “[t]he perception of this agency as doing radical things is mystifying to me. The rhetoric is so overheated.” Liebman, who is 61, also stated that “she asked not to be reappointed [to the NLRB] and was ready to move on.”
Greenhouse also interviewed former NLRB Member Peter Schaumber, who was appointed byPresidentGeorgeW.Bush. Schaumber stated, “[t]here has always been a certain arc in the board’s decisions when control changes between parties. Certain cases would go back and forth, but what we’re seeing now goes well beyond that arc.”
Wyatt Employment Law Report 