Statement: Court Finds Appointment of NLRB’s Lafe Solomon Invalid

In November of 2011, Cause of Action requested an investigation into Mr. Lafe Solomon, the then-acting general counsel of the National Labor Relations Board. Cause of Action has highlighted the conflict of interest concerning Lafe Solomon’s actions in the Boeing case, as well as his engagement in ex-parte communications with a member of the NLRB.   In a June 26, 2013 editorial, Cause of Action explained that “the NLRB’s chief enforcer of unfair labor practices – was himself a recess appointment.”

Dan Epstein, executive director of Cause of Action, offered this response to recent ruling that confirmed that Lafe Solomon’s appointment was invalid:

“U.S. District Judge Benjamin H. Settle’s decision on August 13 that ruled that National Labor Relations Board acting general counsel Lafe Solomon’s appointment was invalid recognizes what the NLRB has failed to acknowledge: that former acting general counsel Lafe Solomon’s authority was questionable and came at an extreme cost to America’s job creators, like Boeing and Wal-Mart.

Worse, because the NLRB’s General Counsel lacks an Inspector General, this decision provides accountability in ways that the Executive Branch and Congress had failed to do.”

Morning News for Tuesday, February 26, 2013

From the San Francisco Chronicle:

A federal appeals court granted a reprieve Monday to an oyster farm that challenged the federal government’s refusal to renew its lease at Point Reyes National Seashore, site of a proposed marine wilderness.

Drakes Bay Oyster Co. has raised “serious legal questions” about the Interior Department’s action, said the Ninth U.S. Circuit Court of Appeals in San Francisco. The court also said the company and its employees would suffer hardships by having to shut down while the case was pending.

More from the Associated Press.

From Forbes:

Appeals of NLRB decisions pending before the nation’s various Circuit Courts of Appeals since the issuance of the D.C. Circuit’s widely publicized Noel Canning decision have challenged the validity of the Board’s recess appointees and its resulting lack of a quorum.


A federal judge in Washington on Friday dismissed most of the claims brought by a small Chinese firm against President Barack Obama for squashing its bid to build wind farms close to a naval training site… The court did say Ralls could move forward with its challenge to how the statute at issue was implemented in this case. Ralls has argued that the due process clause of the U.S. Constitution entitles it to hear the reasons for the president’s decision.

Morning News for Monday, February 25, 2013

From the Washington Examiner:

By any fair estimate, the NLRB, which is funded with taxpayer dollars, has operated as a vehicle for Big Labor to achieve bureaucratic victories it could not otherwise see enacted in the legislature.

From Huffington Post:

Helen Grieco’s strange post “Tilting at Windmills” (Huff Post Green, February 20, 2013) takes a lot of cheap shots at Drakes Bay Oyster Farm. The post is riddled with errors and false implications.

Wall Street Journal:

Senate Democrats are in a hurry to confirm Jack Lew as Secretary of the Treasury before anyone notices his biography. Otherwise, liberal lawmakers might be embarrassed voting for a man who represents everything they’ve been campaigning against.

Daily Caller: Former ethics officer says NLRB inspector general ‘improperly’ cleared Obama appointee of wrongdoing

Read the full story here. Daily Caller

“Prompted in part by Joseph’s claims, the legal advocacy group Cause of Action sent a Dec. 7 request to the Department of Justice for a new investigation into the Solomon case. Cause of Action claimed that the OIG “shifted the blame away from Solomon” in order to resolve a case that has caused turmoil within the NLRB and a headache for the Obama administration.

The case dates back to January 2012, when the NLRB considered suing Wal-Mart over allegations that it violated federal labor laws with its social media policy.

Despite holding more than $15,000 in Wal-Mart stock, Solomon attended a meeting in his office with the NLRB’s Division of Advice on Jan. 23. Solomon expressed in the meeting his desire for the NLRB to delay the lawsuit and instead “reach out” to Wal-Mart to encourage the company to change its social media policy.”


CoA NLRB Report and Letter to DOJ

121207 CoA letter to DOJ & NLRB Report

CoA Memo on NLRB’s Lafe Solomon & Conflict of Interest Law

Following the NLRB Office of Inspector General’s report on General Counsel Lafe Solomon’s conflict of interest in a matter before the board, Cause of Action is providing the following legal analysis for public education.

Cause of Action Memo on NLRB OIG Report Re: Lafe Solomon Conflict of Interest

Cause of Action Demands Answers From NLRB On Ex Parte Communications



Inspector General at NLRB May Have Ignored Evidence Against Lafe Solomon and Wilma Liebman

WASHINGTON – Cause of Action (CoA), a government accountability group, sent a letter on Monday to National Labor Relations Board (NLRB) Inspector General David Berry (IG Berry) requesting documents and communications about alleged ex parte communications by NLRB Acting General Counsel Lafe Solomon and former NLRB Chair Wilma Liebman first revealed by CoA in November of 2011.

On November 22, 2011, CoA requested that IG Berry open an investigation to determine whether Wilma Liebman engaged in ex parte communications with Lafe Solomon. CoA submitted several emails evidencing communications between Solomon and Liebman concerning strategies surrounding the pending litigation by the NLRB against the Boeing company. Despite this evidence, deposition transcripts from March 15, 2012 related to the NLRB’s investigation into Terence Flynn reveal that IG Berry denied any other instances of ex parte communications, stating “If I have evidence other people are engaging in this type of conduct, we would look at other individuals.” While Inspector General Berry has not confirmed whether an investigation has begun, CoA is concerned that Berry may have delayed investigating CoA’s allegations until after the OIG’s two investigations into two Republicans at the NLRB: Board member Brian Hayes and then-Chief Counsel Terence Flynn.

CoA’s Executive Director, Dan Epstein, is concerned about IG Berry’s apparent failure to promptly investigate allegations of improper communications:

“In November 2011, Cause of Action provided IG Berry with internal NLRB emails evidencing potential ex parte communications between Lafe Solomon and Wilma Liebman during Lafe Solomon’s litigation against Boeing in 2011. These alleged ex parte communications were shown to have occurred even after Lafe Solomon filed the complaint against Boeing in April 20, 2011. The allegedly improper communications by Terence Flynn occurred starting in September 2011; the alleged improper communications from Member Hayes occurred between September and November 30, 2011. And yet investigations of Hayes and Flynn occurred even though the alleged improper activities by Wilma Liebman and Lafe Solomon occurred months before. As CoA states in its letter to IG Berry, ‘we are particularly troubled that a decision, if any, to investigate the allegations of ex parte communications by Wilma Liebman and Lafe Solomon after substantial delay may be arbitrary and capricious, if not politically charged.’ This is why we are requesting any documents from the NLRB that would verify that IG Berry is in fact investigating based upon the evidence Cause of Action submitted to him nearly 10 months ago.”

CoA’s letter, a Freedom of Information Act request, asks for the following:
1) All records, including e-mails, referring or relating to Cause of Action’s November 22, 2011 request for an NLRB OIG investigation.

2) All records referring to or related to Congressman Kline’s letter of April 13, 2012.

3) Any and all investigative reports or documents submitted to Congress regarding the substance of Chairman Kline’s April 13, 2012 letter.

4) All records referring to or related to allegations of ex parte communications from officials of the NLRB pertaining to the Boeing matter referenced above.

5) All records pertaining to concluded investigations or determinations made regarding Cause of Action’s November 22, 2011 request for investigation.

6) All records of any concluded investigations, both criminal and administrative, into NLRB ex parte communications regarding the Boeing matter referenced above.

7) All records referring or relating to why investigative reports such as Reports concerning OIG-I-467 and OIG-I-468 are not publicly posted by the NLRB OIG.

8) All documents referring or relating to the procedures used by the NLRB OIG to determine whether information or allegations are sufficiently “credible” to warrant the launching of an investigation.

9) Any and all records concerning referrals by the NLRB OIG to the U.S. Department of Justice.
The full letter can be found here.

Previous requests and findings by CoA concerning ex parte communications at the NLRB can be found here.

About Cause of Action:
Cause of Action is a nonprofit, nonpartisan organization that uses investigative, legal, and communications tools to educate the public on how government accountability and transparency protects taxpayer interests and economic opportunity. For more information, visit