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Second Court of Appeals Declares NLRB Appointments Unconstitutional

The Third Circuit Court of Appeals today became the second U.S. Circuit Court to rule that President Barack Obama’s recess appointments to the National Labor Relations Board were unconstitutional. The Third Circuit was divided on the issue, but the majority ruled in NLRB v. New Vista Nursing and Rehabilitation, that President Obama’s March 2010 recess appointment of Craig Becker to the NLRB was invalid. This follows the January 25, 2013 ruling by the District of Columbia Court of Appeals in Noel Canning v. NLRB that President Obama’s January 4, 2012 recess appointments of Sharon Block, Terry Flynn and Richard Griffin were invalid. Check our prior note on the Noel Canning case here. Block and Griffin continue to sit on the NLRB. If their recess appointments are invalid, the NLRB has only a single confirmed member and cannot issue valid decisions.

As we noted in January 2013, rulings invalidating NLRB appointments of this type conflict with a ruling by the Eleventh Circuit Court of Appeals, Evans v. Stephens, 387 F.3d 1220 (11th Cir. 2004) concerning recess appointments for federal judges.

The NLRB lost another ruling this month when the D.C. Circuit held that the NLRB did not have the authority to require employers to display posters written by the NLRB. See that report here.

Employer Guidance: Given this second appellate court ruling, any opinion (particularly in the Third or D.C. Circuit) issued by the NLRB during the period on or after March, 2010, in which Craig Becker participated with only two other confirmed NLRB members could well be in jeopardy. Like it did with the Noel Canning opinion, it is expected that the NLRB will appeal this ruling. We’ll be watching.