Third Circuit: Appointment of NLRB Member During Intrasession Break not Valid

In an ongoing and continuing discussion and battle concerning President Obama’s recess appointment of Craig Becker as a member of the National Labor Relations Board back in 2010, the Third Circuit Court of Appeals has weighed in, holding that the appointment was invalid, and that the board panel which included Becker therefore lacked a valid quorum. The Third Circuit Court of Appeals considered this issue because the Board issued a bargaining order to a nursing facility, which the facility claimed was invalid due to lack of quorum. 

In rendering its decision in NLRB v. New Vista Nursing and Rehabilitation, No. 11-3440 (3^rd Cir., May 16, 2013) the Court looked to the Recess Appointments Clause of the U.S. Constitution which provides that the President may fill up all vacancies which occur during the Senate recess. The question here was what “the recess of the senate” means in the actual verbiage of the clause. There were three alternative definitions proposed: 1) breaks between sessions of the Senate; 2) intersession breaks as well as breaks within a session that last for non-negligible time; or 3) any break in the Senate business that renders the body unavailable to provide advice and consent on the President’s nominations.  

The Court concluded that the “recess of the senate” language could only mean intersession breaks. As a result, the NLRB lacked the requisite number of members to exercise the Board’s authority because the one panel member (Becker) was invalidly appointed during the intrasession break.  

In reaching this decision, the Court vacated the Board’s order directed at a nursing and rehabilitative center to bargain.     

There’s certainly more to this 102 page opinion (and the 54 page dissenting opinion by Justice Greenaway).