The U.S. Court of Appeals for the Third Circuit May 16 ruled that President Barack Obama’s March 2010 recess appointment of Craig Becker to the National Labor Relations Board (NLRB) was unconstitutional. The ruling supported a Jan. 25 decision by the U.S. Court of Appeals for the D.C. Circuit that found the president’s January 2012 recess appointments of Richard Griffin and Sharon Block also unconstitutional.

“This is yet more evidence the president went outside his constitutional authority and wrongly circumvented the role of the Senate as the administration attempted to stack the deck in favor of organized labor,” said Geoff Burr, president of the Coalition for a Democratic Workplace (CDW) and vice president of federal affairs for ABC.

In its decision in New Vista Nursing and Rehabilitation v. NLRB, the Third Circuit court found that the president only is allowed to make recess appointments during breaks between sessions of Congress and not during breaks that occur during sessions. 

In addition, because the court found Becker was unconstitutionally appointed, every case he participated in during his tenure on the board may be subject to challenge. The Jan. 25 decision by the D.C. Circuit in Noel Canning v. NLRB also potentially invalidates decisions made during the terms of recess appointees Sharon Block and Richard Griffin. That case was supported by business organizations, including the ABC-led CDW.

The NLRB has petitioned for U.S. Supreme Court review in the Noel Canning decision and the president renominated Becker and Griffin, the two unconstitutionally appointed members, to the NLRB, along with NLRB Chairman Mark Gaston Pearce. The Senate Health, Education, Labor & Pensions (HELP) Committee voted May 22 to approve all five of the president’s nominees after holding confirmation hearings. A full Senate vote is expected following the Memorial Day recess. 

During the May 16 HELP Committee confirmation hearing, Pearce responded to the Third Circuit court’s ruling by announcing, “We owe it to the public to continue to work.” This echoes his statement after the D.C. appeal’s court ruling that the board “will continue to perform [its] statutory duties and issue decisions.”

Because of the board’s unwillingness to place any restraint on itself, ABC supported the “Preventing Greater Uncertainty in Labor-Management Relations Act” (H.R. 1120), which would prohibit the NLRB from taking any action that requires a quorum until the U.S. Supreme Court issues a decision on the recess appointments or the Senate confirms a quorum.

The legislation passed the U.S. House of Representatives April 10 in a vote of 219-209 and an identical companion to the bill was introduced in the Senate April 26 by Sen. Lamar Alexander (R-Tenn.).

“With two different courts finding the president’s appointments illegal, it is time for him to withdraw his current nominations and provide new, qualified nominees for advice and consent of the Senate,” Burr said.