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Recess Appointment Ruling Hits NLRB as Senators Duel Over Nominees

Joe Mont | May 16, 2013

On the same day U.S. Senators grilled nominees to the National Labor Relations Board, yet another court ruling vacated one of its orders over contested “recess appointments” made by President Obama.

On Thursday, with a 2-1 vote, the U.S. Court of Appeals for the Third Circuit (Philadelphia) ruled against an agency decision and order in the case of National Labor Relations Board v. New Vista Nursing and Rehabilitation. In doing so, it invalidated the recess appointment of NLRB Board Member Craig Becker.

Previously, in Noel Canning v. National Labor Relations Board, the U.S. Court of Appeals for the District of Columbia Circuit similarly struck down two other recess appointments made in March to the Board, Richard Griffin and Sharon Block have both been re-nominated.

The result of the combined decisions -- both of which hinged on the determination that Congress was still in “pro forma” session and not a formal recess at the time of the appointments -- means the Board has lacked a quorum since at least August 2011. In a worst-case scenario, the ruling that the appointments violated Article II, Section 2 of the Constitution, could mean that more than 900 NLRB decisions might be invalid.

The most recent judicial blow for the NLRB involves New Vista, which operates a nursing and rehabilitative care center in Newark, New Jersey. On Jan. 25, 2011, a healthcare workers' union petitioned the NLRB for certification as the representative for New Vista‘s licensed practical nurses. New Vista opposed the certification on the grounds that its LPNs are supervisors who cannot unionize under the National Labor Relations Act.

In March 2011, the NLRB ‘s regional director determined that New Vista‘s LPNs were not supervisors and certified the union. New Vista appealed to the Board, which affirmed the order. The union won a majority in the ensuing election, but New Vista refused to bargain with it, leading to a charge of unfair labor practices. The Board unanimously granted summary judgment in favor of the union and against New Vista in a subsequent decision and order issued by a three-member “delegee group.”

On Sept. 7, 2011, New Vista filed a motion with the Board to reconsider the order, arguing that the three-member delegee group had no standing. Although the order was dated Aug. 26, one day before board member Wilma Liebman, resigned, it was not issued until it was mailed during the week of Aug. 29. Because of the NLRB  had only two legal members when the order was issued, it violated the three-member-composition requirement,” New Vista argued. The NLRB Board denied two appeals.

The court, in Thursday's decision, agreed: “The delegee group acted without power and lacked jurisdiction when it issued the order.”

In his dissenting opinion, Judge Joseph Greenaway invoked the Founding Father's views of separation of powers.

“The problem with limiting the Recess Appointments Clause to intersession recesses is that such an interpretation disarms the reciprocal checks that the President needs to have on the Senate,” he wrote. “While the President pays a steep price for foregoing the advice and consent of the Senate, the Senate pays a relatively low price for thwarting the President's power to make recess appointments by, for example, reducing its intersession recesses to negligible periods of time, for instance, one day.  Consequently, the safeguard against the encroachment of the Senate on the power of the President is much weaker… It is inconceivable that the Framers [of The Constitution] intended such strong-arming by the Senate.”

The Obama Administration has petitioned the Supreme Court to review the Canning ruling.

During the Committee on Health, Education, Labor and Pensions (HELP) hearing, Iowa Democrat Tom Harkin pushed back against Republican threats to block nominees.

“It is deeply disappointing to see what has happened to the Board in recent years, including the relentless political attacks endured by the dedicated public servants,” he said. “There are clearly many Republican elected officials – I'm not saying all Republicans, but certainly a sizable group – who are actively trying to shut the NLRB down.”

Sen. Lamar Alexander (R-Tenn.), the Ranking Member of the HELP Committee, said he would oppose the nominations of Block and Griffin because “they continued to decide cases after the federal appellate court unanimously decided they were unconstitutionally appointed.”

“Recess appointments have to be made during recesses,” he said, adding that “their decision to stay on creates enormous opportunity for confusion and waste.