We previously advised you about the ongoing controversy regarding  President Obama’s recess appointments to the NLRB. A similar issue has now arisen regarding the President’s appointment of Lafe Solomon as Acting General Counsel. That “acting” appointment began on June 21, 2010. On August 13, the United States District Court for the Western District of Washington dismissed a suit brought by the Acting General Counsel’s office on behalf of the NLRB seeking an injunction against a residential support services provider, because it found that Solomon’s appointment under the Federal Vacancies Reform Act (“FVRA”) was invalid. Hooks v. Kitsap Tenant Support Servs. Inc., 3:13-cv-05470 (W.D. Wash. Aug. 13, 2013). Hooks is the first federal court decision to hold that Solomon’s appointment was unlawful.

In Hooks, NLRB Regional Director Ronald Hooks filed a complaint for injunction relief in the federal district court alleging that Kitsap Tenant Support Services Inc. (“Kitsap”) committed numerous unfair labor practices, including discharging employees for engaging in protected activity, refusing to meet with a union at reasonable times, and delaying bargaining. Kitsap moved to dismiss the complaint, contending that: (1) the Board was without power to act because it lacked a properly appointed quorum, and (2) Acting General Counsel Solomon lacked the power to delegate his authority to initiate legal action to Hooks because Solomon’s appointment was invalid under the FVRA. The court agreed with both arguments, and dismissed the complaint.

The court first held that the Board was without power to act because it lacked a properly appointed quorum at the time the underlying complaint was initiated. The court adopted the reasoning of a line of cases originating from the U.S. Court of Appeals for the District of Columbia’s decision in Noel Canning v. NLRB, all holding that President Obama’s January 2012 intra-session appointments of three members to the Board were invalid under the Recess Appointment Clause.

The court then rejected Hooks’ argument that, even if the Board lacked authorization, Solomon’s delegation of authority to initiate legal action was still valid. The court noted that the FVRA permits the appointment of a person only under specific circumstances, one being the appointment of a person, who within the last 365 days, has served as a personal assistant to the departing officer. Because Solomon had never served as the deputy general counsel in the year leading up to his appointment, his appointment by President Obama was unlawful. Thus, because Hooks did not have the power to file the underlying complaint against Kitsap, the Court held that Hooks was precluded from filing a petition for injunctive relief.

The NLRB’s General Counsel supervises the regional offices and is charged with investigating and prosecuting unfair labor practice complaints. Although the Board now has quorum, Hooks is significant because it calls into question the validity of other actions purportedly authorized by Solomon during his tenure as Acting General Counsel.