NLRB Recess Appointments Invalid, Divided Third Circuit Panel Decides

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By Michelle Amber  


The U.S. Court of Appeals for the Third Circuit in a 2-1 decision held May 16 that President Obama's recess appointment of Craig Becker as a member of the National Labor Relations Board during a March 2010 intrasession Senate break was invalid and that a board panel including Becker lacked a valid quorum to issue a bargaining order to a New Jersey nursing facility (NLRB v. New Vista Nursing & Rehab., 3d Cir., No. 11-3440, 5/16/13).

Writing for the majority, Judge D. Brooks Smith said the recess appointment power of the president described in the U.S. Constitution applies only during an “intersession” recess of the Senate, between the first and second sessions of a biennial Congress, not during intrasession adjournments.

Therefore, the Third Circuit ruled, a three-member panel that included Becker acted without power and lacked jurisdiction when it issued an August 2011 decision and order requiring New Vista Nursing and Rehabilitation in Newark, N.J., to bargain with 1199 SEIU United Healthcare Workers East as the bargaining agent for its licensed practical nurses.

Judge Franklin S. Van Antwerpen joined in the majority opinion.

In dissent, Judge Joseph A. Greenaway said although the majority did not rule on the Jan. 4, 2012, recess appointments of Members Sharon Block, Terence Flynn, and Robert Griffin, it presumably would find those appointments likewise invalid. “The Majority's rationale undoes an appointment process that has successfully operated within our separation of powers regime for over 220 years,” Greenaway wrote.

Second Decision Against Recess Appointments

This is the second federal appeals court to rule that recess appointments of NLRB members were unconstitutional. The U.S. Court of Appeals for the District of Columbia Circuit held in Noel Canning Division of Noel Corp. that Obama's recess appointments of Block, Flynn, and Griffin were invalid and that the board lacked a valid quorum to support an unfair labor practice order against a Washington bottling firm (31 HRR 65, 1/28/13).

NLRB April 25 filed a petition asking the U.S. Supreme Court to review the Noel Canning decision (31 HRR 428, 4/29/13).


The Third Circuit decision is at


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