Attorney Challenges Feinstein’s Appointment

The appointment of former NLRB General Counsel Fred Feinstein as an associate general counsel, followed immediately by his appointment as acting general counsel, has raised issues of evasion of law. In documents filed Jul. 21 with the NLRB, attorney Robert W. Tollen charged that the rapid appointment was an unlawful maneuver to keep Feinstein in office. Tollen is defending Contractors’ Labor Pool, a construction company, against unfair labor practice charges brought by the Int’l. Brotherhood of Electrical Workers in Denver. Feinstein issued a complaint, but the company contends he had no authority because he was unlawfully appointed acting general counsel.

During his 4-year term that expired on Mar. 2, Feinstein tripled the use of injunctions against employers and took positions generally seen as advancing the agenda of big labor. On Mar. 5, Feinstein asked the White House not to renominate him because he didn’t want protracted fight. Two days earlier, Feinstein had been appointed associate general counsel and then immediately acting general counsel. When the office of general counsel is vacant, the NLRB president may appoint an officer of the board as acting general counsel. According to Tollen, there was no vacancy until Mar. 3, the day after Feinstein’s term ended, but then Feinstein was no longer an officer of the board. “This little technicality” was overcome by appointing Feinstein as an associate general counsel. The challenge will be decided by NLRB, but its decision is subject to reconsideration by the U.S. Courts of Appeals and Supreme Court. [The Recorder 07/28/98]