Federal Judge Invalidates Appointment of Top Board Attorney

Written by Robert G. Brody and Abby M. Warren on October 10, 2013

A U.S. District Court for the Western District of Washington held that Lafe Solomon, Acting General Counsel of the National Labor Relations Board (“Board”), was improperly appointed and as a result, dismissed a Board petition for injunctive relief.  Solomon was appointed by President Obama as the top Board attorney in June 2010.

In this case, a complaint was issued by the Regional Director (“RD”) of Region 19 (Alaska, Idaho, Montana, Oregon, and Washington) and thereafter the RD sought injunctive relief in court under Section 10(j) of the National Labor Relations Act (“Act”).  The Company, a residential support services company that allegedly unlawfully fired employees, first argued that the Board was without valid authority to delegate power to the RD since the Board did not have a quorum at the time.  The Court accepted this argument, citing Enterprise Leasing and New Vista, two federal appellate court cases that invalidated the recess appointments of Board Members.  These cases followed the D.C. Circuit’s case, Noel Canning, which held similarly and will be heard by the U.S. Supreme Court this term.

The Charging Party argued that even if the Board appointments were invalid, the RD had the authority to initiate a claim based on power delegated from General Counsel Solomon.  The Company disagreed arguing the RD’s authority was only as good as was Solomon’s and Solomon’s authority was invalid as he too was improperly appointed.  The Court agreed.  The basis for his improper appointment was he had not fulfilled a key requirement of the Federal Vacancies Reform Act, the statute under which he was appointed.  Under that statute, an appointee must serve as a personal assistant to the departing general counsel within the prior 365 days.  Solomon had not done this.

Solomon will not be Acting General Counsel for long.  As part of a deal with Senate Republicans (which included the confirmation of five Board members in the end of July), President Obama has already nominated Richard Griffin, Jr., a former union attorney and member of the Board (whose appointment was found unconstitutional in Noel Canning).  Griffin’s nomination is still pending before the full Senate.

While still an ardent union supporter, hopefully Griffin will not be as radical as Solomon.  Solomon and the prior Board’s pro-union bias has been a national topic for several years.  Together they proposed the Board’s  poster rule (which is still being challenged), the quickie election rule, and together they initiated  numerous attacks on employment policies of non-union companies  including social media,  employment-at-will, and confidentiality policies.

We will keep you updated on whether or not this case is appealed and what, if any, effect it has on other cases around the country.

Brody and Associates regularly advises its clients on union-related matters and provides union-free training.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

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Related Topics: Legal Updates, Legislative Updates, News, NLRB

About the Authors

Robert G. Brody is the founding member of Brody and Associates, LLC. He has been quoted and published in national publications and appears as a guest T.V. commentator on contemporary Labor and Employment issues. Learn More

Abby M. Warren is an Associate with Brody and Associates, LLC. She works on both Labor and Employment Law matters. Abby worked at the New Haven Superior Court. Learn More