The NLRB Creates A New Defense

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A federal district court in Washington has struck down an NLRB petition for a Section 10(j) injunction because the NLRB lacked a valid quorum at the time the petition was authorized.  In Hooks v. Kitsap Tenant Support Services[1], Judge Benjamin Settle ruled that the NLRB General Counsel's request for immediate injunctive relief against an employer could not proceed in light of the "persuasive" legal analysis of the three Circuit Courts of Appeal that have found the recess appointment of NLRB Members Block and Griffin to be invalid[2].

In light of the recent Senate confirmation of a full five member NLRB, the Kitsap decision would seem to be little more than a footnote to the recess appointment dispute.  However, Judge Settle went on to consider the NLRB General Counsel's alternative argument that the injunction should go forward notwithstanding the alleged invalidly appointed NLRB.  The General Counsel contended that Acting General Counsel Lafe Solomon had legal authority to bring the injunctive proceeding (through Regional Director Hooks).  Specifically, Hooks claimed that Solomon was appropriately appointed pursuant to the Federal Vacancies Reform Act ("FVRA"). 

Judge Settle disagreed, ruling that Solomon was not validly appointed by President Obama because Solomon had not previously served as the personal assistant to the departing officer.  Accordingly, Judge Settle found that the underlying administrative complaint upon which the NLRB sought an injunction was not validly issued.

Although no other federal court has so ruled, this decision might encourage other employers to challenge even 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. 


[1] In Hooks v. Kitsap Tenant Support Services, Case No. C13-5470 (W.D. WA August 13, 2013).

[2] See e.g.  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).