Dealing yet another blow to the National Labor Relations Board (“NLRB” or “Board”), on May 16, 2013, the Third Circuit Court of Appeals ruled that President Obama’s 2010 recess appointment of Craig Becker to the NLRB was invalid. The case is NLRB v. New Vista Nursing & Rehabilitation, Case Nos. 11-3440, 12-1027 and 12-1936. The Third Circuit agreed with the D.C. Circuit Court of Appeals’ decision in Noel Canning, which invalidated the President’s 2012 appointments of Sharon Block and Richard Griffin. 

The Third Circuit invalidated Becker’s appointment on constitutional grounds, holding that the President’s authority under the Constitution to make recess appointments is limited to breaks between sessions of the Senate when the Senate is by definition not in session and therefore unavailable, i.e., intersession breaks. Thus, because Becker’s appointment was not during an intersession break and, therefore, invalid, the NLRB lacked the requisite number of members (three) to exercise Board authority. 

Adding further uncertainty of the NLRB’s authority to function following Noel Canning, the invalidation of Becker’s appointment in New Vista Nursing calls into question numerous Board decisions dating back to March, 2010.

The NLRB is seeking review of the Noel Cannon decision by the U.S. Supreme Court. In the meantime, however, the New Vista Nursing and Noel Canning decisions open the door for challenges to the validity of the NLRB’s decisions rendered since March, 2010, and any decision rendered in the interim, until this issue is hopefully resolved by the Supreme Court.