Third Circuit Invalidates President Obama's Recess Appointment to NLRB

Third Circuit Invalidates President Obama's Recess Appointment to NLRB

In this Emerging Issue Analysis, N. Peter Lareau, author of "NLRA: Law and Practice" and numerous other books and articles in the field of labor law, summarizes the court's decision in NLRB v. New Vista Nursing & Rehabilitation (New Vista II) and offers some thoughts on its implications for the future.

Excerpt:

In NLRB v. New Vista Nursing & Rehabilitation (New Vista II) [an enhanced version of this opinion is available to lexis.com subscribers], a three-member panel of the Third Circuit, split 2-1, held that a decision and order issued by the National Labor Relations Board ("Board") in New Vista Nursing & Rehabilitation, LLC ("New Vista I") [enhanced version], was invalid because one of the three participating Board members had not been properly appointed. The case turns on the proper interpretation of the Recess Appointments Clause of the United States Constitution, which authorizes the President of the United States to fill, without the advice and consent of the Senate, vacancies in federal offices that normally require such advice and consent. The Recess Appointments Clause confers such authority upon the President only "during the Recess of the Senate." The panel majority held that the phrase "Recess of the Senate" means only breaks between sessions of the Senate ("intersession breaks"). Because one of the three Board members who participated in New Vista I had been appointed without the advice and consent of the Senate and at a time when the Senate was not in a break between sessions, the court held that the Board lacked jurisdiction to issue the decision.

In doing so, the Board considered an issue not raised by the parties - the proper interpretation of the Recess Appointments Clause in the context of Member Becker's appointment to the Board and his participation in the New Vista decision. The court's conclusion that the Recess Appointments Clause refers only to intersession breaks is consistent with the D.C. Circuit's decision in Noel Canning v. NLRB,[enhanced version] and rejects two alternate interpretations of the term "Recess" posited by the parties."

In this Emerging Issue Analysis, N. Peter Lareau, author of "NLRA: Law and Practice" and numerous other books and articles in the field of labor law, examines the court's reasoning, which delves into the issue in considerably more depth than the decision in Noel Canning, and offers some thoughts on its implications for the future.

Facts

On August 26, 2011, the Board granted its General Counsel's motion for summary judgment in a case asserting that New Vista Nursing and Rehabilitation had unlawfully refused to bargain with a union certified by the Board as the exclusive representative of New Vista's licensed practical nurses and entered an order requiring New Vista to bargain with the union. The decision was rendered by three-person panel of the Board pursuant to the provisions of Section 3(b) of the Act, which authorizes the Board to "delegate to any group of three or more members any or all of the powers which it may itself exercise." On September 7, 2011, New Vista filed a motion with the Board to reconsider its August 26 order, arguing that, although the order was dated August 26, it was not issued until it was mailed during the week of August 29, at which time the term of one of the three Board members who issued the order, Wilma Liebman, had resigned when her term expired on August 27. Therefore, New Vista asserted, at the time the order issued, the panel that issued the ordered had been reduced to two members, contrary to § 3(b)'s three-member requirement. [footnotes omitted]

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