Third Circuit Decision in NLRB v. New Vista Nursing Deems Recess Appointment Invalid

Following the D.C. Circuit’s recent Noel Canning decision, the Third Circuit issued a decision this morning invalidating President Obama’s recess appointment of  former Chairman Craig Becker to the NLRB.  

The decision strikes down an August 26, 2012 NLRB Order finding that a New Jersey nursing home refused to bargain with a recently certified unit of nurses.  On a larger scale, however, it jeopardizes many more rulings made by the Board under Becker’s chairmanship as well as those decisions issued by subsequent recess appointees.  The majority did not directly address Obama’s January 2012 recess appointments of Richard Griffin, Sharon Block and Terence Flynn, but the Court’s rationale would presumably invalidate those appointments as well.

Defining “Recess”

The issue in New Vista and Noel Canning turned upon a technical debate over the meaning of the word “recess”. In both cases, the courts held that the Senate was not truly in recess at the time Obama appointed Chairman Becker (in New Vista) or Griffin, Block and Flynn (in Noel Canning) to the Board.  

It is likely that the Supreme Court will address this issue in the next term.  Last month, the NLRB filed a petition for certiorari to appeal the Noel Canning to the Supreme Court.