In court to get an injunction, the National Labor Relations Board faced the now-familiar argument that it lacked a quorum when the petition was authorized. See Noel Canning v. NLRB, 705 F.3d 490 (DC Cir. 2013), petition for cert. granted NLRB v. Noel Canning, et al., 12-1281 (June 24, 2013). To avoid the issue, the NLRB contended that its Acting General Counsel, Lafe Solomon, had legal authority to bring the injunctive proceeding, regardless of the Board’s quorum. Specifically, the NLRB claimed that Solomon was appropriately appointed pursuant to the Federal Vacancies Reform Act (“FVRA”). Hooks v. Kitsap Tenant Support Services, Case No. C13-5470 (W.D. WA August 13, 2013).

The district court judge ultimately followed the Noel Canning decision and denied the Board’s petition for an injunction because the Board lacked a quorum, but the judge went on to consider the NLRB’s alternative argument and ruled that Solomon was not validly appointed. Solomon had not previously served as the personal assistant to the departing officer, consequently the underlying administrative complaint upon which the NLRB sought an injunction was not validly issued.

Although no other federal court has ruled on this issue, this decision might encourage other employers to challenge the issuance of NLRB administrative complaints under the FVRA. Thus, the NLRB, in its zeal to defend its right to proceed, may have given employers an entirely new defense.