As the validity of President Obama's "recess" appointments to the National Labor Relations Board remains in question, now a court has determined that the appointment of the NLRB's Acting General Counsel Lafe Solomon was invalid. In Hooks v. Kitsap Support Tenant Services, Inc., a federal judge in Washington state held that the appointment did not comply with the Federal Vacancies Reform Act of 1998. The decision is likely to have a big impact if it survives a motion for reconsideration or appeal. But whether it will do so remains to be seen.

The Case and History

Solomon was a long-time, high-ranking employee of the Board for many years before his appointment by President Obama to the Acting General Counsel position in June 2010, the position he still holds today. He subsequently was twice nominated to the General Counsel position, but the Senate failed to confirm his nominations, and the President has now withdrawn Solomon's nomination. The FVRA governs temporary appointments to positions that would normally require the advice and consent of the Senate.

The Board's General Counsel acts as the "independent" investigator and prosecutor of unfair labor practices before the Board and represents the Board in actions in federal court, including actions for injunction under the National Labor Relations Act. The General Counsel carries out many of the office's functions through delegation to the various Regional Offices of the Board headed by Regional Directors.

The Hooks decision arose from the following situation. Solomon, acting through a delegation to NLRB Region 19, issued an unfair labor practice complaint against the employer before the Board, and Regional Director Ronald Hooks filed a civil action in federal court for injunctive relief pursuant to Section 10(j) of the National Labor Relations Act to protect the Board's remedial power in the unfair labor practice case. The employer moved to dismiss the federal court action, apparently on two grounds: (1) the NLRB, because of two defective "recess" appointments, lacked the necessary quorum to issue an administrative complaint and petition a federal court for injunctive relief based on the administrative complaint; and (2) Solomon lacked power to delegate authority to the regional office because he was invalidly appointed. Although the briefs are not publicly available, the employer apparently argued that Solomon did not satisfy the requirements for an appointment under the FVRA because he had not served as a first assistant to the General Counsel during the period of 365 days before his appointment. First assistants are one of three categories of individuals who arguably may be appointed under that Act. District Court Judge Benjamin H. Settle agreed with the employer and dismissed the Board's petition for injunctive relief.

The Upshot

It is unknown whether the Board will move for reconsideration or appeal of Judge Settle's decision. In any event, the part of the decision dealing with Solomon's appointment may become moot because the decision was also based on the lack of a Board quorum, an issue that the Supreme Court has agreed to resolve in Noel Canning. Therefore, the validity of Solomon's appointment may have to wait for resolution until another FVRA challenge is heard by a federal appellate court. But this is certainly one more labor issue that employers will want to monitor closely.