United States: Another Federal Court Invalidates The Recess Appointment Of An NLRB Member

Executive Summary:  In a 2-1 decision, the Third Circuit has held that the President's recess appointment of Craig Becker to the National Labor Relations Board was invalid because he was not appointed during an intersession break of Congress as required by the Recess Appointments Clause.  Accordingly, the court held that a three-member panel of the Board, which included Becker, could not exercise the Board's authority, and the court vacated an unfair labor practice decision issued by the panel.  See NLRB v. New Vista Nursing and Rehabilitation (May 16, 2013).

Background

In this case, a three-member "delegee group" of the Board found that New Vista committed an unfair labor practice by refusing to bargain with a union, which was certified as a representative of LPNs employed by New Vista despite the employer's argument that the LPNs were supervisors.  New Vista appealed the Board's decision to the Third Circuit, arguing that Becker was invalidly appointed and, therefore, the panel lacked three members as required to exercise the Board's authority.             

The Court's Decision

The court addressed whether Becker, who was appointed one day after the Senate adjourned for two weeks, was appointed during a recess of the Senate, as required by the Recess Appointments Clause.  The parties argued that the term "recess of the Senate" has one of three meanings:  (1) intersession breaks; (2) intersession and intrasession breaks that last a non-negligible period, which has historically been ten days; or (3) any time in which the Senate is not open for business and is unavailable to provide its advice and consent.

After conducting an extensive analysis, which included the textual context, historical use, and Constitutional context, the court concluded that "recess of the Senate" means only intersession breaks and that Becker's appointment was invalid.  The court noted that nothing in the Recess Appointments Clause indicates it was intended to "be a type of pressure valve for when the president cannot obtain the Senate's consent."  The court also rejected the dissent's argument that the court should interpret the President's recess-appointment power broadly so he can "surround himself with the people he believed best fit to help him fulfill his duty" because "that is exactly what the drafters rejected when they rejected unilateral appointments authority in the executive."

Employers' Bottom Line:  The Third Circuit is the second federal appeals court to find that the President's recess appointment of an NLRB member is invalid.  Earlier this year in Noel Canning, the D.C. Circuit held that the President's appointments of Members Griffin and Block were invalid because they did not occur during an intersession recess.  The decision in New Vista will provide additional support for the argument that the D.C. Circuit's decision was correctly decided and that other decisions by the three-member panel that included Becker are invalid.  The NLRB has asked the U.S. Supreme Court to review the Noel Canning decision and may also seek review of the New Vista decision. 

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