Insights for the Labor Relations Professional


An Invalid Appointment Makes For an Invalid Case

By Nelson Cary

By Nelson Cary and George Stevens

Last week, a federal appeals court dismissed a petition for interim injunctive relief, but the problem wasn’t the petition—or even the facts supporting it. The problem was the Acting General Counsel of the NLRB who authorized the petition in the first place.

A petition for interim injunctive relief essentially requests that a court make the person accused of an unfair labor practice stop the behavior alleged by an unfair labor practice complaint while the NLRB processes the complaint. Such a petition requires, among other things, that either the General Counsel of the NLRB or a quorum of the NLRB itself authorize it.  Here, the Acting General Counsel—“Acting” since the General Counsel post was vacant at the time—authorized it.

Lafe E. Solomon was designated the Acting General Counsel for the Board in June 2010 after his predecessor resigned. While serving in this role, President Obama nominated him for the full-time job in January 2011.  In June 2013, Mr. Solomon authorized the petition against KTSS while simultaneously holding the position of Acting General Counsel and up for nomination for the permanent position.  Therein lay the problem.

The Federal Vacancies Reform Act authorizes the President to temporarily fill vacancies in offices in the Executive Branch that ordinarily require Senate confirmation, with the idea being that the work of such an office still needs to get done. It also provides for certain conditions in which an appointee for such an office may simultaneously serve in that office in an acting capacity—just as Mr. Solomon was doing when he authorized the petition.  The problem was that Mr. Solomon did not meet the conditions necessary to serve in an acting capacity in an office for which he was nominated permanently.

Since Mr. Solomon was invalidly holding his position as Acting General Counsel while up for consideration for the permanent position, he could not validly authorize the petition for interim injunctive relief against KTSS.  The court of appeals’ decision was consistent with a similar decision reached by another court of appeals last year.

While this sounds like a major victory—getting something tossed out over the technicalities of Presidential appointment powers—it does not stop the NLRB from pursuing various administrative complaints against KTSS that stemmed from unfair labor practice charges filed by a union. The case is significant, however, as another reminder of the major battle over Presidential nominations to the NLRB itself, which ultimately led to an important U.S. Supreme Court decision.

Tags: appointments, Courts, Acting General Counsel


Insights for the Labor Relations Professional