Another Setback for the NLRB: Federal District Court Invalidates the Acting General Counsel’s Appointment

In a four page decision in Hooks v. Kitsap Tenant Support Services, Inc., Case No. C13-5470 BHS (W.D. Wash. Aug. 13, 2013), Judge Benjamin H. Settle of the United States District Court for the Western District of Washington granted the employer’s motion to dismiss the National Labor Relations Board’s petition for injunctive relief under Section 10(j) of the National Labor Relations Act. In dismissing the petition, Judge Settle found that the Board and Acting General Counsel Lafe Solomon lacked authority to issue a NLRB complaint against the employer, and thus could not seek injunctive relief under Section 10(j).

In its motion to dismiss, the employer asserted that the Board, and thus the regional director seeking the injunctive relief, was without power to act because the Board lacked a properly appointed quorum. The court agreed based on the legal analysis in NLRB v. Enterprise Leasing Co. Southeast, LLCand NLRB v. New Vista Nursing and Rehabilitation, and thus concluded that there was no valid NLRB complaint:

As applied to the facts of this case, Hooks [the Regional Director] was without power to file the complaints against Kitsap in the underlying administrative matter. A petition for injunctive relief brought under Section 10(j) may be brought only "upon issuance of a complaint as provided in 29 U.S.C. § 160(b)." 29 U.S.C. § 160(j). Without a valid complaint, Hooks is precluded from filing a petition for preliminary relief. Therefore, the Court grants Kitsap’s motion to dismiss on this issue.

Regional Director Ronald K. Hooks argued in response that even if the Board lacked authorization, the actions of Acting General Counsel Solomon, including his delegation of authority to initiate legal action to Hooks, was still valid. Judge Settle disagreed:

First, Hooks asserts that President Obama validly appointed Solomon pursuant to the Federal Vacancies Reform Act ("FVRA"), 5 U.S.C. § 3345, et seq. … The FVRA, however, only permits appointment of a person under specific circumstances and the only circumstance that could apply to Hooks is appointing a person who, within the last 365 days, has served as a personal assistant to the departing officer. Id. § 3345(b). It is undisputed that Solomon has never served as a first assistant. Therefore, Hooks’s argument is without merit.

While having Solomon’s appointment invalidated by a federal court is another setback for the NLRB, there might be a persuasive argument for its reversal if appealed. Under subsection (a) of the Vacancies Reform Act, there are generally three categories of people who may serve temporarily in an acting capacity for a vacant presidentially appointed, Senate-confirmed position ("PAS"):

1. "the first assistant to the office of such [PAS] officer" (5 U.S.C. § 3345(a)(1));
2. other PAS officers designated by the President (5 U.S.C. § 3345(a)(2)); and
3. “an officer or employee of such Executive agency” if such officer or employee served in a position for the agency for not less than 90 days in the preceding year and the rate of pay for the such position “is equal to or greater than the minimum rate of pay payable for a position at GS-15 of the General Schedule” (5 U.S.C. § 3345(a)(3)).

Prior to Solomon’s appointment as the Acting General Counsel on June 21, 2010, Solomon directed the NLRB’s Office of Representation Appeals for approximately ten years. As such, Solomon did not qualify under the first or second categories, but he did fall into the third category.

In finding Solomon’s appointment improper, Judge Settle, however, focused on subsection (b) of the Vacancies Reform Act, which states:

Notwithstanding subsection (a)(1), a person may not serve as an acting officer for an office under this section, if–

(A) during the 365-day period preceding the date of the death, resignation, or beginning of inability to serve, such person–

(i) did not serve in the position of first assistant to the office of such officer; or

(ii) served in the position of first assistant to the office of such officer for less than 90 days…

5 U.S.C. § 3345(b)(1) (emphasis added).

As such, the language relied on by Judge Settle could be construed as only a limitation on the temporary appointments of "first assistants" to prevent a president from hiring someone into the agency as a first assistant after a vacancy occurs for the purpose of appointing him or her as the acting officer under the Vacancies Reform Act the very next day. In that case, that restriction would not have applied to Solomon’s appointment. Accordingly, an appellate court might disagree with Judge Settle’s reasoning and overrule his decision. However, it is also possible that the reviewing court might affirm or rely upon alternative grounds for holding Solomon’s appointment invalid.

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