With the impending expiration of the term of recess appointee Craig Becker once Congress adjourns in December, the NLRB announced on November 3 that it will delegate authority over various litigation matters to Board Acting General Counsel Lafe Solomon. With the Supreme Court having invalidated nearly 600 rulings issued by a previous two-member Board between December 2007 and March 2010 in New Process Steel, L.P. v. NLRB, 130 S. Ct. 2635 (2010), the NLRB policy would provide Solomon with the authority to carry out basic Board functions.Without a three-person quorum, New Process Steel prevents the Board from issuing decisions. Although delegation to Solomon does not include this adjudicative authority, it will allow Solomon to carry out other key functions, including certifying the results of secret ballot elections, seeking 10(j) injunctions against employers and unions over unfair labor practices, and conducting appeals to the Supreme Court.
Congressional Republicans and business interests have been highly critical of Solomon’s tenure as Acting General Counsel, most notably his role in challenging various new state constitutional amendments banning the use of the card check process in union elections and for his role in initiating an unfair labor practice complaint against Boeing Company for purportedly engaging in anti-union discrimination in locating a new non-union production line in South Carolina. Solomon has been nominated to a full term as General Counsel, but his nomination remains stalled in the Senate.
Upon expiration of Becker’s term, the Board will be composed of Democratic chairman Mark Pearce and Republican member Brian Hayes. The Senate has not taken action on the nomination of Republican NLRB lawyer Terence Flynn and Senate Republicans have repeatedly blocked Becker’s nomination to a full five-year term.