Washington Federal Court ruling threatens validity of National Labor Relations Board actions

On August 13, 2013, the federal trial court for the Western District of Washington issued a ruling with a potentially major impact on employers defending against complaints brought by the National Labor Relations Board. In Hooks v. Kitsap Tenant Support Services, Inc., the court dismissed an unfair labor practice complaint and petition for injunctive relief brought by Region 19 of the NLRB on the basis that the Board lacked a properly appointed quorum and therefore did not have authority to act.

The case had been brought by the NLRB in an effort to prevent the employer, a home healthcare provider, from disciplining employees pending resolution of other pending unfair labor practice claims. At the time the lawsuit was filed, the NLRB had only two of five required members appointed and properly confirmed by the United States Senate. The employer successfully argued that with only two confirmed members out of a required five member Board, the Board lacked a sufficient quorum to validly act.

The court rejected the Board’s alternative argument that the complaint was proper because authority had been delegated to the Region by the Board’s Acting General Counsel. The court determined that like the members of the quorum, the Acting General Counsel’s appointment was procedurally flawed. As a result no delegation of authority to the Region was possible.

If actions were brought by the Board in the window during which the Board lacked a sufficient quorum, the Kitsap Tenant Services decision provides an argument that the Board actions were taken without authority. As the potential implications are substantial – possible invalidity of Board actions both locally in Region 19 and nationally – the issues are likely to require further court resolution and the Kitsap Tenant Support ruling may be appealed.

In the meantime, employers and their counsel should review any litigation or claims pending with the NLRB to determine the impact, if any, of this new decision.
This post was written by Patrick Pearce, a Member of Ogden Murphy Wallace’s Employment and Labor Law Practice Group on August 28, 2013. This post does not constitue legal advice.

Explore posts in the same categories: Labor Laws, Lawsuits, NLRB

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