By KIMBERLEY A. STRASSEL
The Wall Street Journal
July 4, 2013
For a true expression of the imperious and extralegal tendencies of the Obama administration, there is little that compares with the Wisdom of Solomon. Lafe Solomon, that is, the acting general counsel of the National Labor Relations Board.
Mr. Solomon’s wisdom was on revealing display this week, in the form of a newly disclosed letter that the Obama appointee sent to Cablevision in May. The letter was tucked into Cablevison’s petition asking the Supreme Court this week to grant an emergency stay of NLRB proceedings against it. The Supremes unfortunately denied that request, though the exercise may prove valuable for shining new light on the labor board’s conceit.
A half-year has passed since the D.C. Circuit Court of Appeals ruled in Noel Canning that President Obama’s appointments to the NLRB were unconstitutional, and thus that the board lacks a legal quorum. In May, the Third Circuit affirmed this ruling. Yet the NLRB—determined to keep churning out a union agenda—has openly defied both appeals courts by continuing to issue rulings and complaints.
Regional directors in April filed two such unfair-labor-practice complaints against Cablevision. The company requested that Mr. Solomon halt the proceedings, given the NLRB’s invalid status. It is Mr. Solomon’s refusal, dated May 28, that provides the fullest expression of the NLRB’s insolence.
The acting general counsel begins his letter by explaining that the legitimacy of the board is really neither here nor there. Why? Because Mr. Solomon was himself “appointed by the President and confirmed by the Senate”—and therefore, apparently, is now sole and unchecked arbiter of all national labor policy.
This is astonishing on many levels, the least of which is that it is untrue. Mr. Solomon is the acting general counsel precisely because the Senate has refused to confirm him since he was first nominated in June 2011. Nor will it, ever, given his Boeing escapades.
Then there is the National Labor Relations Act, which created the NLRB. The law clearly says that the general counsel acts “on behalf of the Board”— a board that is today void, illegitimate, null, illegal. Mr. Solomon admits the “behalf” problem in his letter, though he says he’s certain Congress nonetheless meant for him to be “independent” of the board. He says.
The acting general counsel naturally rushes to explain that — his omnipotence aside — the NLRB still has every right to ignore the courts. His argument runs thus: Because a decade ago the 11th Circuit issued an opinion that upholds recess appointments (though it didn’t deal with Mr. Obama’s breathtaking reading of that power), there exists a “split” in the circuit courts. The NLRB is therefore justified in ignoring any courts with which it disagrees until the Supreme Court has “resolved” the question.
What Mr. Solomon fails to note is the extremes the NLRB has gone to in order to suggest court confusion. The agency has deviated from past procedures, and it refused to ask either the D.C. Circuit or the Third Circuit to “stay” their opinions. Why? Because to do so—and to be rebuffed—would put the NLRB under enormous pressure to acknowledge that those courts have authority over its actions.
The board has likewise ignored the fact that the D.C. Circuit hears more NLRB decisions than any other, and is also the pre-eminent court for reviewing federal agency decisions. This ought to entitle that court, and its Noel Canning ruling, respectful deference from the labor board.
The most revealing part of Mr. Solomon’s letter is the section cynically outlining why the NLRB continues to operate at a feverish pace. Mr. Solomon notes that this isn’t the first time the board has operated without a quorum.
The NLRB issued 550 decisions with just two board members before the Supreme Court’s 2010 ruling in New Process Steel that the NLRB must have a three-person board quorum to operate. Mr. Solomon brags that of these 550, only about 100 were “impacted” by the Supreme Court’s ruling—which, he writes, proves that the NLRB is justified in continuing to operate even at times when its “authority” has been challenged.
Mr. Solomon is in fact celebrating that of the 550 outfits harassed by an illegal, two-member board, only about 100 later decided they had the money, time and wherewithal to spend years re-litigating in front of the labor goon squad. The NLRB is counting on the same outcome in Cablevision and other recent actions.
The board will push through as many rulings and complaints against companies as it can before the Supreme Court rules on its legitimacy. And it will trust that the firms it has attacked and drained will be too weary to then try for reversals. This is why the Obama administration waited so long to petition the Supreme Court to reverse Noel Canning. The longer this process takes, the more damage the NLRB can inflict on behalf of its union taskmasters.
Right now, the NLRB is the only weapon the administration can wield on behalf of Big Labor. The need to placate that most powerful special interest was behind Mr. Obama’s decision to install his illegal recess appointments in the first place, and it explains the NLRB’s continuing defiance of courts and Congress. Mr. Solomon’s wisdom is the Obama philosophy of raw power, in all its twisted glory.
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