High Court to Scrutinize Labor Board Appointment

     (CN) – The Supreme Court on Monday said it would consider whether a former chief lawyer at the National Labor Relations Board served in violation of a federal law governing temporary appointments.
     The issue comes to the court by way of a dispute between the agency and SW General Inc., an Arizona-based ambulance company accused of unfair labor practices during a contract dispute with its workers.
     SW General argued that Lafe Solomon, the former Acting General Counsel of the National Labor Relations Board, was serving in his position in violation of the Federal Vacancies Reform Act, and as a result, the agency’s complaint against it was null and void.
     In August 2015, the D.C. Circuit sided with the company.
     In its petition for certiorari, the Obama administration said the ruling created confusion and uncertainty that have led Congressional Republicans to question the legitimacy of a number of the president’s interim appointments.
     President Barack Obama named Solomon acting general counsel in June 2010 and he held the office until November 4, 2013.
     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.
     However, there is an exception if the nominee had served as a “first assistant” to the person who previously held the office.
     In its petition, 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. But SW General counters that the law is clear, and Solomon’s appointment while his nomination was pending he was never confirmed by the Senate plainly violated it.
     In 2014, the Supreme Court ruled that the president’s recess appointment of three NLRB members was unconstitutional.
     That ruling invalidated hundreds of NLRB rulings and forced the agency to reissue those decisions.
     As is its custom, the court did not explain its rationale for taking up the latest case.

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