Third Circuit Deals NLRB Another Blow

By Mike Grubbs

Another federal circuit court has struck down one of President Obama’s recess appointments to the National Labor Relations Board. In N.L.R.B. v. New Vista Nursing and Rehabilitation, the Third Circuit Court of Appeals held that the recess appointment of Craig Becker in March 2010 was invalid because the Senate was not actually in a recess when the President appointed Becker to the Board. Because the Senate was not in recess, the President lacked the authority to unilaterally appoint Becker, according to the court of appeals. And, because Mr. Becker’s appointment was invalid, the NLRB was operating without a quorum and lacked authority to issue orders. The Third Circuit’s decision corresponds with the D.C. Circuit’s well-publicized Noel Canning decision, which held that the President lacked authority to make two recess appointments to the Board because the Senate was not truly in recess at the time of the appointments.

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