A second U.S. Court of Appeals has ruled that recess appointments of National Labor Relations Board (“NLRB” or “Board”) members were unconstitutional because they did not occur during an intersession recess of the Senate. NLRB v. New Vista Nursing & Rehab., 3d Cir., No. 11-3440, (5/16/13). Earlier this year, the U.S. Court of Appeals for the District of Columbia Circuit held, in Noel Canning, that Obama's recess appointments of NLRB members Sharon Block (D), Terence Flynn (R), and Robert Griffin (D) were invalid and that the Board, therefore, lacked a valid quorum to support an unfair labor practice order. Noel Canning v. NLRB, 12-1115 (D.C. Cir. Jan. 25 2013).

Now the U.S. Court of Appeals for the Third Circuit has ruled, 2-1, that President Obama's recess appointment of Craig Becker to the NLRB during a March 2010 intrasession Senate break was likewise invalid. Therefore, the Third Circuit ruled, the NLRB lacked a valid quorum to issue a bargaining order to New Vista Nursing and Rehabilitation, a New Jersey nursing and rehabilitative facility.

Similar to the D.C. Circuits reasoning in Noel Canning, the Third Circuit ruled that the recess appointment power of the president, as described in the U.S. Constitution, applies only during an “intersession” recess of the Senate, not during intrasession adjournments of the congressional body. Therefore, the three-member panel that included Becker acted without power and lacked jurisdiction when it issued a Decision and Order, in August 2011, requiring that New Vista bargain with 1199 SEIU United Healthcare Workers East.

In dissent, Judge Joseph Greenaway, determined that while the majority did not rule on the January 4, 2012 recess appointments of Block, Flynn, and Griffin, it would presumably find those recess appointments likewise invalid, and “[t]he Majority's rationale undoes an appointment process that has successfully operated within our separation of powers regime for over 220 years.”

With the validity of hundreds of Board decisions at issue, we continue to watch to see if the Supreme Court agrees to provide a definitive ruling on the recess appointment issue.