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NLRB - Recess Appointment of NLRB Member Declared Unconstitutional

Submitted by Firm:
Cross, Gunter, Witherspoon & Galchus, P.C.
Firm Contacts:
Abtin Mehdizadegan, J. Bruce Cross, Misty Wilson Borkowski
Article Type:
Legal Update
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In line with the D.C. Circuit's January 2013 decision in Noel Canning v. NLRB, the Third Circuit Court of Appeals, in NLRB v. New Vista Nursing and Rehabilitation, declared former NLRB Member Craig Becker's 2010 appointment during an intrasession break unconstitutional. The Third Circuit's 102-page decision came down on May 16, 2013 and dealt another blow to the NLRB.

The dispute over the validity of the recess appointments stems from the U.S. Constitution's Recess Appointments Clause and under what circumstances does a "recess," for purposes of the Recess Appointments Clause, occur. The vital importance is that the NLRB is allowed to issue decisions only when it has at least three sitting members. Consequently, now, in the Third Circuit and D.C. Circuit, the NLRB's actions taken in the absence of at least three valid members are subject to rejection.

The 2-1 decision, written by Judge D. Brooks Smith, concluded that the President may only make recess appointments when there is an "intersession recess," rejecting the NLRB's argument that "recess" should be interpreted as any time the Senate is not open to conduct business and give advice and consent. The NLRB's proposed definition would seemingly incite a separation of powers crisis as it would afford the executive the power to "simply wait . . . until senators go home for the evening" and then make recess appointments.

The Third Circuit's decision in New Vista is certainly not the end of the saga over the validity of the NLRB's recess appointments. It is very likely that the issue will culminate with a decision by the United States Supreme Court.