Further complicating the beleaguered Agency’s ability to carry out its mission, a federal court has determined that National Labor Relations Board Acting General Counsel (GC) Lafe Solomon was not properly appointed to his position. Hooks v. Kitsap Tenant Support Services Inc., Case No. CV-13-5470BHS (W.D. Wash. Aug. 15, 2013). This latest development, on the heels of recent challenges to the legitimacy of the recess appointments of Board Members Sharon Block and Richard Griffin, will further undermine the Board’s authority during Solomon’s tenure and will call into question the validity of a host of actions Solomon and his office have taken since his appointment on June 21, 2010.

On August 13, 2013, U.S. District Court Judge Benjamin H. Settle granted an employer’s motion to dismiss a lawsuit in which the NLRB sought an injunction against the employer based on accusations that the employer was terminating its employees for engaging in protected activity. In its motion to dismiss, the employer argued (1) only the NLRB has the authority, after issuing an unfair labor practice complaint, to petition a federal court for injunctive relief, and the NLRB did not at that time have a quorum of three lawfully appointed members; and (2) the NLRB could not lawfully delegate its authority to Acting GC Solomon because Solomon’s own appointment was also invalid.

In reviewing the employer’s first argument, Judge Settle found that the NLRB was without the power to issue a complaint against the employer in the first place because the Board lacked a properly appointed quorum of at least three members. Because President Obama appointed two of the three sitting members through the President’s recess appointment power when the U.S. Senate was technically still in session, Judge Settle found that those two appointments were invalid. Because the NLRB appointments were invalid, Judge Settle reasoned, the Board did not have a quorum to act and, without a quorum, could not have legally issued the complaint that served as the basis for the petition for injunction.

In response, the Regional Director argued that even if the Board did not have the legal authority to issue a complaint, Solomon, whose office investigates and prosecutes unfair labor practice charges, could delegate his statutory authority to the Regional Director to initiate a suit for injunctive relief against the employer. Judge Settle dismissed that argument as well, finding that Solomon’s appointment was also invalid. President Obama appointed Solomon to the position of Acting GC pursuant to the Federal Vacancies Reform Act (FVRA). The FVRA, however, only authorizes the appointment of an individual to the position of Acting General Counsel if, within the last 365 days, the appointee served as the “first assistant” or Deputy General Counsel. Finding that Solomon never served as Deputy General Counsel, Judge Settle also ruled that Solomon’s appointment was invalid. Accordingly, Solomon could not have lawfully delegated authority to Regional Director Ronald Hooks to file a petition for injunction in federal court.

This decision will likely prompt a strong response among employers currently facing unfair labor practice litigation before the NLRB. The validity, or lack thereof, of Solomon’s appointment will provide an additional affirmative defense for employers. However, it is highly unlikely that the NLRB will change its approach to litigation based on Solomon’s status unless and until the U.S. Supreme Court affirms the ruling in Hooks v. Kitsap Tenant Support Services, Inc.