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.
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.
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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