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District court concludes NLRB Acting General Counsel’s appointment was invalid, denies regional director’s request for 10(j) injunction

By Lisa Milam-Perez, J.D.

Concluding that NLRB Acting General Counsel Lafe Solomon was improperly appointed, a federal district court in Washington in turn held that any delegation of authority by the Acting GC was also invalid, and any complaint issued pursuant to that authority toothless (Hooks v Kitsap Tenant Support Services, Inc, August 13, 2013, Settle, B). Consequently, an NLRB regional director lacked power to seek Sec. 10(j) injunctive relief against an employer pending disposition of an invalidly issued unfair labor practice complaint, the court held, dealing another setback to the agency and adding to employers’ arsenal when challenging the legitimacy of Board actions in recent years.

Spending little time on the issue, the district court held the NLRB did not have a properly constituted quorum under President Obama’s recess appointments, persuaded by the reasoning of the Third and Fourth Circuits in cases cited by the employer in its bid to stave off the Board’s enforcement action. The court rejected the regional director’s contention that even if the Board lacked authorization, the Acting General Counsel’s delegation of authority to initiate legal action was still valid. The regional director relied on the Federal Vacancies Reform Act (FVRA) in support of this notion. However, the FVRA only permits the appointment of a person under specific circumstances, and the only circumstance that might possibly apply is the appointment of an individual who, within the last 365 days, had served as a personal assistant to the departing official. It was undisputed, though, that Lafe Solomon had never served as a first assistant, so the regional director’s FVRA argument lacked merit.

The regional director next argued that Solomon’s actions were exempted from the penalty provision of the FVRA and thus, were valid. While the Acting General Counsel was exempted from the penalty provision, the court said, it didn’t follow that he had authority to act pursuant to an improper appointment.

Because the Acting General Counsel could not validly delegate authority, the regional director was without power to file complaints. And, since a Sec. 10(j) petition can only be brought upon issuance of a valid complaint, the regional director was not entitled to injunctive relief. Therefore, the court granted the employer’s motion to dismiss.