Obama Labor Board Pick Ruled Invalid as Case Reversed

A National Labor Relations Board decision against a New Jersey nursing home was vacated in a ruling by an appeals court concluding that one board member was improperly appointed by President Barack Obama.

The U.S. Constitution’s Recess Appointment Clause refers only to intersession breaks, invalidating one NLRB member’s appointment in 2010 during a 17-day adjournment, the U.S. Court of Appeals panel in Philadelphia said yesterday in a 2-1 ruling.

The NLRB “lacked the requisite number of members to exercise the board’s authority because one panel member was invalidly appointed during an intrasession break,” the appeals court ruled. “We will therefore vacate the board’s orders.”

The appeals court panel is the first to consider the validity of the president’s recess appointment powers since an appeals court panel in Washington ruled Jan. 25 that NLRB appointments last year were “constitutionally invalid.” The Obama administration is awaiting a decision by the U.S. Supreme Court on whether it will hear the Washington case.

Allison Price, a Justice Department spokeswoman, declined to comment on yesterday’s ruling.

The case heard in Philadelphia involves appeals filed by New Vista Nursing and Rehabilitation, a Newark, New Jersey-based nursing home, over an NLRB decision dated Aug. 26, 2011, that the company unlawfully refused to bargain with a union designated as a collective-bargaining representative, according to court filings.

Nursing Home

New Vista filed four motions for reconsideration with the board and challenged its authority to act because it lacked a quorum of three legitimate members. The company argued during a hearing in March that by the time it made its final request for reconsideration, three of the NLRB’s five members had been improperly installed during recesses.

Craig Becker was appointed to the board on March 27, 2010, one day after the Senate adjourned for two weeks. Two other members, Richard Griffin and Sharon Block, were appointed on Jan. 9, 2012, according to the ruling. The panel’s ruling yesterday didn’t address Block and Griffin’s appointments.

“Member Becker is the only member of the delegee group that issued the Aug. 26 order who was recess appointed and thus the only one whose appointment is in question,” the panel said.

According to the ruling, a recess is defined as the period between congressional sessions, known as an intersession recess, as opposed to the more frequent breaks the Senate takes throughout a legislative session.

Dissenting View

The decision would presumably find that the appointments of Block and Griffin are likewise invalid, U.S. Circuit Judge Joseph Greenaway said yesterday in a dissenting opinion.

Greenaway said the appointments were a “valid exercise of the executive power granted to the president” under the Recess Appointments Clause.

“The majority’s rationale undoes an appointments process that has successfully operated within our separation of powers regime for over 220 years,” Greenaway wrote.

Yesterday’s ruling didn’t go as far as the decision by the Washington court, which said valid appointments could be made only for vacancies that arose while the Senate was adjourned for an intersession recess. In rejecting Becker’s appointment, the Philadelphia court said it wasn’t necessary for them to consider that interpretation of the Recess Appointments Clause.

On April 25, the NLRB asked the U.S. Supreme Court to reverse the Washington court’s decision. The high court hasn’t decided whether it will consider the case.

The case is NLRB v. New Vista Nursing and Rehabilitation, 11-11340, U.S. Court of Appeals for the Third Circuit (Philadelphia).

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