Acting General Counsel Lafe Solomon did not have the authority to delegate to a Regional Director the authority to issue an unfair labor practice complaint, the U.S. District Court for the Western District of Washington has ruled. Hooks v. Kitsap Tenant Support Services, Inc., No. 13-5470 (W.D. Wash. Aug. 13, 2013).

After issuing an unfair labor practice complaint against the employer (Kitsap Tenant Support Services, Inc.), Ronald K. Hooks, Regional Director of Region 19 of the National Labor Relations Board, petitioned the District Court for an injunction against Kitsap under Section 10(j) of the National Labor Relations Act. The Court refused to issue the injunction. Instead, it issued an order granting the employer’s motion to dismiss.

The Court first decided that Hooks did not have the authority to issue an unfair labor practice complaint against Kitsap and, therefore, his petition filed with the Court for injunctive relief under Section 10(j) of the Act against Kitsap was invalid. The Court adopted the reasoning in the Fourth Circuit’s NLRB v. Enterprise Leasing Company, 2013 U.S. App. LEXIS 14444 (4th Cir. July 17, 2013), and the Third Circuit’s NLRB v. New Vista Nursing and Rehabilitation, 2013 U.S. App. LEXIS 9860 (3d Cir. May 16, 2013), that “Recess” in the Recess Appointment Clause means the period of time between adjournment sine die and the start of the Senate’s next session. Since, under those cases, the NLRB was without power to act because it lacked a properly appointed quorum, Hooks was without the power to issue the unfair labor practice complaint against Kitsap. Because the complaint was invalid, Hooks was precluded from filing a petition for preliminary relief under Section 10(j).

Hooks argued in the alternative that Acting General Counsel Lafe E. Solomon lawfully delegated his authority to initiate legal action to Hooks. He asserted that President Barack Obama validly appointed Solomon pursuant to the Federal Vacancies Reform Act (“FVRA”), 5 U.S.C. § 3345, et seq. The Court decided, however, that the FVRA permits only the 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). According to the Court, “[i]t is undisputed that Solomon has never served as a first assistant. Therefore, Hooks’s argument is without merit.”

Hooks also contended that Solomon’s actions were exempted from the penalty provisions of the FVRA and, therefore, are valid. The Court found that, although Hooks was correct that the Acting General Counsel’s actions are exempted from the penalty provision, “[t]his fact, however, does not grant him the authority to act pursuant to an improper appointment. Therefore, Hooks’s argument is without merit.”

Unlike the Enterprise and New Vista cases, this matter had not yet reached the (now-five-member) Board for resolution before it was short-circuited by a court decision. In addition, unlike those cases (and Noel Canning), this case raises an entirely new issue: the authority of the Acting General Counsel to delegate his authority to a Regional Director to issue an unfair labor practice complaint. Given the importance of the Acting General Counsel’s authority to issue complaints to the administration of the Act, it is likely that this decision will be appealed by the NLRB.