In a 2-1 decision in NLRB v. New Vista Nursing and Rehabilitation issued on May 16, the Third Circuit Court of Appeals invalidated President Obama’s recess appointment of former Member Craig Becker to the National Labor Relations Board (“NLRB”). The Court held that “the Recess of the Senate” in the Recess Appointments Clause refers only to breaks between sessions of the Senate (i.e., “intersession breaks”). Because Becker was invalidly appointed during a two-week break within a session, the Court ruled that the three-member NLRB panel in which he participated lacked the requisite number of members to exercise the Board’s authority and vacated the panel’s decision and order regarding New Vista’s bargaining obligations.

As we previously reported, the D.C. Circuit earlier reached a similar conclusion in Noel Canning v. NLRB. On April 25, 2013 the NLRB filed a petition for a writ of certiorari asking the U.S. Supreme Court to review the Noel Canning decision.