Former National Labor Relations Board Member Craig Becker’s appointment to the agency was invalid, the United States Court of Appeals in Philadelphia has ruled. NLRB v. New Vista Nursing and Rehabilitation, LLC, Nos. 11-3440, 12-1027 & 12-1936 (3d Cir. May 16, 2013). Becker was selected by President Barack Obama to serve a “recess” appointment on the Board from March 27, 2010 until early in 2012.
The Court held that the Presidential recess appointment power is limited to breaks between sessions of Congress, not breaks within sessions. After Becker’s controversial nomination to the Board failed to reach the Senate floor in 2010, President Obama appointed him to the Board during a two-week break in Senate proceedings during the second session of the 111th Congress. Becker served on the Board until the end of the Senate’s next session. However, the Third Circuit said President Obama’s recess appointment of Becker was unconstitutional and without effect because it occurred during an intrasession legislative period.
The Third Circuit, with one judge dissenting, adopted the reasoning of the District of Columbia Circuit’s ruling in Noel Canning, holding that “the recess” contemplated by the Constitution’s Recess Appointments clause refers only to “intersession breaks” between formal sessions of the Senate and not breaks merely within a session (i.e., “intrasession breaks”) or other breaks during which the Senate is unable to provide advice and consent. (For more information on Noel Canning, in which three NLRB recess appointments by President Obama in January 2012 were declared invalid, see our article, Recess Appointments at NLRB Unconstitutional, Federal Appeals Court Rules.) As a result of its holding, the Third Circuit decision overturned the Board’s ruling against New Vista Nursing and Rehabilitation because Member Becker was part of the three-member Board panel that had issued the decision and, without his lawful participation, the Board lacked a three-member quorum necessary to render decisions under the Supreme Court’s 2010 ruling in New Process Steel, LP v. NLRB. (For more on New Process Steel, see our article, Supreme Court Rules Labor Board Had No Authority to Issue Hundreds of Decisions.) The Court noted the question of whether the Board had a proper quorum was a jurisdictional issue which, it said, could be raised at any time. Thus, this ruling calls into question any NLRB decision in which Becker participated, at least in the Third Circuit and presumably the D.C. Circuit, as well.
Despite Noel Canning, the NLRB has continued to issue decisions, stating that it is conducting “business as usual,” because (according to Board Chairman Mark Gaston Pearce) the Noel Canning ruling applies only to one specific case in one Circuit. New Vista represents yet another obstacle to the NLRB’s “business as usual” approach. The Circuit Court decisions have broad and critical implications. Noel Canning has been appealed to the U.S. Supreme Court, which has yet to decide whether to review the case. New Vista may be appealed to the high court as well.