Friday, August 23, 2013
I'll admit it: I didn't see this one coming. A federal district court judge in Washington has just denied an NLRB petition for a 10(j) injunction based on the argument that the NLRB Members' at the time recess appointments were invalid and that Acting General Counsel Lafe Solomon's appointment was improper.
The judge explicitly followed New Process in holding the recess appointments (which he mistakenly moved back by a full year) invalid. The NLRB then argued that the Regional Director doesn't need Board approval for a 10(j) injuction; instead, a delegation of authority from the GC will suffice. But the judge rejected that by concluding that Solomon's appointment was also infirm.
The argument with regard to Solomon implicates a different issue that the NLRB member appointments, which are largely constitutional in nature, as the GC is covered by the Federal Vacancies Reform Act. I have not looked closely at that act, but I've always been under the impression that Solomon's appointment fit easily under its requirements. The judge disagreed, based primarily on the argument that an acting GC must have been a "first assistant" to the GC prior to his or her appointment and that Solomon (who was Director of the Representation Unit before his appointment) didn't satisfy that requirement.
That conclusion still sounds fishy to me--I believe that Solomon and other similar section directors reported directly to the GC--but I'll concede that I don't know the FVRA enough to make an informed judgment (and the court also said it was "undisputed" that Solomon was never a first assistant). Moreover, the FVRA make a specific exception for the NLRB GC (which is why I've always thought this was fine), stating that it's not covered by a provision that doesn't allow ratification of actions by officials who were improperly appointed. The judge characterized this as an exception to a "penalty provision" that doesn't allow Solomon to act when his appointment was improper. I'm not sure that's really a "penalty" and the judge's argument seems circular, but again, I'm speaking partially out of ignorance here.
Hat Tip: Patrick Kavanagh & PS