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
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.
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As early as next week, the Department of Labor is expected to issue its final rule implementing revisions to the regulations governing the application of the FLSA's "white collar" exemptions from overtime and minimum wage.
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