At least one court has accepted an argument that the NLRB Acting General Counsel, Lafe Solomon, and regional directors appointed by him or to whom he delegated authority lack authority to issue unfair labor practice (ULP) complaints, seek injunctive relief and carry out other functions of the NLRB's General Counsel's office. On August 13, 2013, the US District Court for the Western District of Washington issued an opinion in Hooks v. Kitsap Tenant Support Servs., holding an NLRB regional director lacked authority to seek injunctive relief against an employer based on alleged ULPs because the NLRB was not properly constituted at the time the complaint was issued. The court adopted the reasoning of the US Courts of Appeals for the Third and Fourth Circuits, holding President Obama invalidly appointed NLRB members during a Senate recess (for more information, see Legal Updates, NLRB Intra-session Recess Appointments Were Unconstitutional, Precluded Quorum: Fourth Circuit and Third Circuit Joins DC Circuit in Condemning NLRB Intrasession Recess Appointments; Casts Doubt on Validity of Other Recess Appointees' Decisions). The court also rejected the regional director's argument that the Acting General Counsel's delegation of authority was proper despite the NLRB's lack of authority, finding the Acting General Counsel was not validly appointed under the Federal Vacancies Reform Act.

This argument has not yet gained traction in other courts, but employers involved in NLRB litigation may consider:

UPDATE: The US Court of Appeals for the Ninth Circuit affirmed the conclusions but not the analysis of the district court (Hooks v. Kitsap Tenant Support Servs., Inc., (9th Cir. Mar. 7, 2016)). The Ninth Circuit's analysis largely mirrored that of the US Court of Appeals for the District of Columbia Circuit in SW General, Inc. v. NLRB (796 F.3d 67, 79 (D.C. Cir. 2015); see Legal Update, NLRB Acting General Counsel Invalidly Served from January 5, 2011 to November 4, 2013: DC Circuit).