Even though we now have the first complete NLRB in over a decade, the fallout from the Obama Administration’s recess appointments at the Board continue to percolate through the courts. A recent decision from a federal district court in Washington state has denied the Board’s petition for an injunction against an employer because acting general counsel Lafe Solomon’s appointment was “improper” and he lacked the power to authorize an administrative complaint. Hooks v. Kitsap Tenant Support Servs., Inc., 2013 U.S. Dist. LEXIS 114320 (W.D. Wash. August 13, 2013).
Judge Settle’s position in the Hooks case is consistent with several appellate court decisions that held the President’s recess appointments of Board members have been unconstitutional. The trial judge also rejected an argument that an NLRB’s Regional Director properly filed the injunction petition under Solomon’s authority as Acting General Counsel. In a brief order, the court said Solomon had not been appointed to the position in accordance with the Federal Vacancies Reform Act (FVRA).
Kitsap challenged a Section 10(j) injunction petition from the Board, which had been approved by NLRB Chairman Pearce and then-Members Griffin and Block when Griffin and Block were recess appointees. Kitsap moved to dismiss the petition, arguing the Board that approved its filing lacked a quorum because Griffin and Block held recess appointments. Citing decisions from the Third and Fourth Circuits, the court found the recess appointments meant the Board did not have a quorum.
Looking to Solomon’s appointment, the Court noted that the President’s appointment memorandum cited the FVRA. Hooks argued to the court that Solomon was properly appointed under a provision that permits the President to appoint as Acting General Counsel an NLRB employee with more than 90 days of service and pay at or above the GS-15 level. Solomon met those qualifications.
Kitsap argued that other parts of the FVRA restricting the service of individuals in an acting capacity are limited to those who had served in the position of “first assistant” to an NLRB general counsel. Solomon, who was director of NLRB’s Office of Representation Appeals when he was appointed Acting General Counsel, was not a “first assistant,” said Kitsap.
Judge Settle held that the FVRA “only permits the appointment of a person under specific circumstances and the only circumstance that could apply to Hooks is appoint a person who, within the last 365 days, has served as a personal assistant to the departing officer.” Solomon was not, and therefore he did not have the authority to authorize the Section 10(j) action.
This decision, like those of other courts that have struck down NLRB rulings puts everyone on notice that the Board’s actions in recent years are subject successful challenges.