Wyatt Employment Law Report

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Federal Judge Dismisses NLRB Court Case on Grounds of Lack of Quorum and Improper Appointment of Acting GC Solomon

By Edwin S. Hopson

On August 13, 2013, U.S. District Judge Benjamin Settle of the Western District of Washington, issued an opinion and order in Hooks v. Kitsap Tenant Support Services, Civil No. C13-5470 BHS, 2013 WL 4094344, dismissing an action initiated by the NLRB against the company brought under Section 10(j) of the National Labor Relations Act.  The bases on which Judge Settle issued his decision was (a) that the NLRB did not have a quorum of its members when the case was filed and (b) that Acting General Counsel Lafe Solomon’s appointment as acting general counsel was an improper appointment.  Solomon had authorized the court filing.

As to the lack of quorum issue, Judge Settle relied upon N.L.R.B. v. Enterprise Leasing Co. Southeast, LLC, ––– F.3d ––––, 2013 WL 3722388 (4th Cir.2013), and N.L.R.B. v. New Vista Nursing and Rehabilitation, 719 F.3d 203 (3rd Cir.2013).

The Board’s argument that Solomon had properly authorized the case to be filed was rejected based upon the court’s analysis of the Federal Vacancies Reform Act, which permits appointment of a person as an acting official if that person has in the last year served as a “personal assistant” to the departing officer.  The court found that Solomon’s appointment did not fit within the scheme of the Vacancies Reform Act and concluded his appointment was invalid.

Since Solomon was appointed Acting General Counsel on June 21, 2010, he has made scores if not hundreds of decisions which could now be called into question based upon this decision.