United States: Legal Alert: Federal Court Finds Nlrb Acting General Counsel Solomon's Appointment Invalid

Executive Summary:  A federal trial court in Washington state has held that the President violated the Federal Vacancies Reform Act (5 U.S.C. § 3345, et. seq.) when he appointed Lafe Solomon as Acting General Counsel for the National Labor Relations Board (the Board) on June 21, 2010.  See Hooks ex rel. NLRB v. Kitsap Tenant Support Servs. (W.D. Wa. 2013).  Given that Solomon was improperly appointed, the court also held that neither he nor Regional Director Hooks had the authority to issue an unfair labor practice complaint against the employer.  Furthermore, without a valid complaint, Hooks was without the authority to file for a § 10(j) preliminary injunction.


Regional Director Hooks issued a complaint against the employer under the National Labor Relations Act (NLRA), alleging various unfair labor practices.  The employer filed a motion to dismiss, claiming that Solomon was improperly appointed as Acting General Counsel, that Hooks was appointed to his Regional Director position by a Board without a quorum, and that neither of them had the authority to issue a complaint.  The Board rejected the employer's motion.

Subsequently, Hooks petitioned the federal district court for a preliminary injunction under § 10(j) of the NLRA to prevent the employer from committing further alleged unfair labor practices during the course of litigation.  The employer filed a motion to dismiss, which the court granted.

The Court Decision

Board Appointments Invalid

The employer argued that the Board was without authority to act because it lacked a properly appointed quorum of Board members.  A "complete" Board consists of five members serving five-year terms.  The members are appointed by the President and confirmed with the advice and consent of the Senate.  The Board must consist of at least three members to exercise its authority under the NLRA.  On January 4, 2012, the President appointed Members Flynn, Block, and Griffin to the Board to serve with Board Chairman Pearce.  The Senate was in session on January 4, 2012, however the President chose not to seek the Senate's advice and consent on his nominations.  Members Flynn, Block, and Griffin were never confirmed by the Senate at any point.  The employer argued that the President's January 2012 appointments were invalid without the required Senate confirmation.

The court, citing to NLRB v. Enterprise Leasing Co. Southeast, (4th Cir. 2013), and NLRB v. New Vista Nursing and Rehabilitation, (3rd Cir. 2013), agreed with the employer and granted the motion to dismiss.  The court did not reiterate the rationale behind Enterprise and New Vista Nursing, but specifically agreed that "the Recess" in the Recess Appointment Clause meant the period of time between an adjournment sine die (without a specified date to reconvene) and the start of the Senate's next session.  Given that the Senate was not in "the Recess" when Flynn, Block, and Griffin were appointed, the President was required to obtain Senate confirmation of his Board nominees.  Because the Board lacked the power to act, Hooks lacked the power to file an unfair labor practice complaint against the employer.  Without a valid complaint, Hooks was precluded from filing a petition under § 10(j). 

Authority of Acting General Counsel Solomon and Regional Director Hooks

Hooks argued that even if the Board lacked authorization, Acting General Counsel Solomon validly delegated to him the authority to initiate legal action.  The court rejected this argument, finding that Solomon was improperly appointed by the President.  The court held that the Federal Vacancies Reform Act (FVRA) only permits the appointment of an officer of an executive agency under specific circumstances, and those circumstances did not apply to Solomon's appointment.

The court held that Solomon could only have been appointed under the FVRA if he had served as "first assistant" to the departing General Counsel.  Ronald Meisburg retired from the General Counsel position on June 20, 2010, and Solomon was appointed to the Acting General Counsel position effective June 21, 2010.  Prior to this appointment Solomon served as the director of the NLRB's Office of Representation Appeals for over 10 years.  The court found that Solomon had never served as first assistant to the General Counsel, and therefore held that Solomon could not be appointed to the Acting General Counsel position under the FVRA.  Accordingly, the court rejected Hooks' argument that he was acting under a valid grant of authority from Solomon. 

Employer's Bottom Line:  At first blush this case suggests that employers may successfully challenge any actions taken by Lafe Solomon in his role as Acting General Counsel; however, in reality it seems that this decision will have little practical impact.  The Board is likely to appeal the decision, especially since the court's opinion on Solomon's appointment under the FVRA did not discuss portions of that law that could support the propriety of Solomon's appointment (specifically § 3345(a)(3), requiring only that the appointee have served in the specific agency for at least 90 days at a rate of pay equal to or above that of the minimum for the appointed position).  Furthermore, Solomon will no longer serve as Acting General Counsel if the Senate confirms the President's nomination of Richard Griffin as General Counsel.  The confirmation hearing is expected to be held in September 2013, although there is a question as to whether the confirmation will go smoothly. 

Finally, the decision likely will have little impact on the Board's actions in future cases, since it has consistently rejected similar challenges to its authority to act, citing conflicting circuit court opinions on the matter that have yet to be definitively resolved by the Supreme Court.  The Board has stated that it will continue to fulfill its duties under the NLRA until the Supreme Court decides the issue of its authority.  With a full complement of Senate-confirmed Board members, and the possibility of a new General Counsel, the Board will undoubtedly continue with its aggressive rule-making agenda and its focus on the non-unionized workplace.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions