Throwing all decisions of the National Labor Rrelations Board (NLRB) since 2010 into doubt, the Third Circuit Court of Appeals has ruled that the recess appointment of Craig Becker on March 27 of that year was unconstitutional.
As with the D.C. Circuit Court of Appeals and its recent decision ruling that President Obama's three NLRB recess appointments on Jan. 4, 2012, were unconstitutional, the issue hinged on when the Senate is in recess and not just adjourned. The Third Circuit ruled that the Senate was not in full recess and threw out Becker's appointment as unconstitutional.
Since an earlier Bush-era decision by the Supreme Court that NLRB rulings are unconstitutional unless passed by a duly appointed quorum of three of five members on the board, the Third Circuit's decision threatens to roll back all NLRB decisions since March 27, 2010.
At immediate issue was a NLRB ruling in New Vista Nursing and Rehabilitation, which allowed licensed practical nurses (LPNs) to unionize. New Vista had argued unsuccessfully that LPNs are supervisors not allowed to organize. At the time of the New Vista ruling, Becker was one of only three voting members. That decision has now been thrown out, and the lack of a constitutional quorum from Becker's recess appointment onward looms big.