Second court further limits Obama recess appointments

PHILADELPHIA – A second federal appeals court further limited President Obama’s power to make “recess appointments” to the National Labor Relations Board (NLRB) when the Senate is out of session.

In its May 16 ruling, a two-judge majority of Third U.S. Circuit Court of Appeals in Philadelphia ruled that such appointments are illegal even when the Senate is on recess for several weeks. The NLRB is considering how to appeal the court’s decision.

The judges used that rationale to throw out an NLRB ruling in 2011 ordering New Vista Nursing Home in Newark, N.J., to recognize and bargain with the Service Employees 1199 United Health Care Workers East. They said one of the three members of that NLRB, Craig Becker, was an illegal recess appointee – and without him the board lacked a quorum to rule on New Vista’s case.

The Philadelphia court’s New Vista ruling came down the morning the Senate Labor Committee held a confirmation hearing on five Obama NLRB nominees. The Philadelphia ruling builds on a decision the NLRB lost this past January in the Noel Canning case, in the D.C. Circuit Court of Appeals, often called the nation’s second-most-powerful court because it handles most cases involving federal agencies.

Both cases are important to workers because without three sitting members, the NLRB can’t function. Other courts have disagreed with the D.C. and Philadelphia courts on when the president can make “recess appointments.”

Left unsaid in all the cases is that Senate Republican filibusters prevented permanent NLRB members from taking office. And without a functioning NLRB, cases involving workers and companies get delayed and justice is denied, unions point out.

The D.C. judges said two Obama “recess appointees,” Richard Griffin and Sharon Block, were illegal, starting in Jan. 2012, because Obama named them when – the judges said – the Senate was still in session and could “advise and consent” to Obama NLRB nominees. That ruling could throw out hundreds of NLRB decisions.

The Senate was actually in short pro forma sessions, once every three days, lasting 35 seconds or so, where one senator would call the Senate to order and then quickly gavel it to a close. Obama appointed Griffin and Block between those sessions.

But Obama appointed Becker, now a co-counsel at the AFL-CIO and a longtime union lawyer, during a three-week Senate recess in 2010. The two-judge majority in Philadelphia said an appointment even during an officially declared three-week intersession recess isn’t legal, so the board didn’t have three sitting members when it sanctioned New Vista. It tossed out the NLRB’s ruling against the nursing home.

Photo: Workers who suffer retaliation for trying to form a union require a fully functioning NLRB in order to protect their rights.  AP