• GOING, GOING, GONE? Another Step Towards Invalidating the NLRB’S Recent Decisions
  • May 22, 2013 | Author: Richard L. Hackman
  • Law Firm: Barley Snyder - York Office
  • Yesterday, in New Vista Nursing, the Third Circuit (which covers Pennsylvania) invalidated President Obama’s March 2010 recess appointment of Craig Becker to the National Labor Relations Board (NLRB). In yesterday’s ruling, the Court overturned the NLRB’s decision in which it ruled against New Vista Nursing because Becker was part of the three-member panel that made the decision. The invalidation of Becker’s appointment indicates that the NLRB has lacked the requisite quorum since August 2011 and prior three-member decisions in which Becker participated even when the NLRB did have a proper quorum could also be invalidated.

    You may recall that in January, in the matter of Noel Canning, the D.C. Circuit held that the president can only bypass congressional approval for nominees by making recess appointments during the "intersession" break between Senate sessions and not during "intrasession" breaks. Similarly, in yesterday’s decision, the Court held that "the Recess of the Senate" provision in the Recess Appointments Clause refers to only intersession breaks, and, since Becker was appointed during an "intrasession" break, his appointment was invalid. The NLRB argued that the president can make recess appointments "any time in which the Senate is not open for business and is unavailable to provide its advice and consent." The Third Circuit dismissed this argument as problematic because the NLRB’s interpretation would appear to be satisfied even when Senate "members leave for the weekend, go home for the evening, or even take a break for lunch."

    Ultimately, this issue has yet to be definitively decided. The NLRB and the Administration have already filed a petition for certiorari for Supreme Court review in Noel Canning. Republican lawmakers have also advanced bills to force the board to cease operations until the Supreme Court decides the issue. However, the NLRB continues to disregard the decisions and continues to issue rulings maintaining a "business as usual" approach until it hears from the Supreme Court.