On May 16, 2013, the United States Court of Appeals for the Third Circuit ruled that Craig Becker’s appointment to the National Labor Relations Board was invalid in NLRB v. New Vista Nursing and Rehabilitation, LLC, Nos. 11-3440, 12-1027 and 12-1936 (3rd Cir. May 16, 2013).

The Court held that the Presidential recess appointment power is limited to breaks between sessions of Congress, not breaks within sessions. Therefore, the Third Circuit invalidated President Obama’s March, 2010 recess appointment of Craig Becker because it occurred during an intra-session period.  (Becker’s term ran from April, 2010 to January, 2012.)

The Court’s reasoning followed the earlier D.C. Circuit Court ruling in Noel Canning. (For more information, see Recess Appointments at NLRB Unconstitutional, Federal Appeals Court Rules.) As a result of its determination that former-Member Becker’s appointment was invalid, the Third Circuit decision overturned the Board’s ruling against New Vista Nursing and Rehabilitation because Member Becker was part of the three-member Board panel that had issued the decision. The Court noted the issue was a jurisdictional issue which it said could be raised at any time. Thus, this ruling potentially could impact any decision in which Becker participated in the Third Circuit.  Based on this decision, in the Third Circuit’s view, the NLRB lacked a quorum since approximately August 2011.

After the Noel Canning decision, the NLRB has continued to issue decisions, stating that it was conducting “business as usual,” because (as noted by Board Chairman Pearce) the Noel Canning ruling applies only to one specific case in one Circuit. This case represents yet another hurdle for the NLRB and “business as usual.

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Photo of Howard M. Bloom Howard M. Bloom

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification campaigns. He also represents clients at the National Labor Relations Board in connection with bargaining unit issues, objections and challenges, as well as unfair labor practice investigations and trials. Mr. Bloom also has been the spokesperson at countless first and successor contract collective bargaining negotiations, and regularly advises on collective bargaining agreement administration issues, including grievance/arbitration issues.

Mr. Bloom has appeared before the Massachusetts Supreme Judicial Court, the U.S. Court of Appeals for the District of Columbia, several U.S. District Courts, the National Labor Relations Board, the Massachusetts Labor Relations Commission, the Equal Employment Opportunity Commission and the Massachusetts Commission Against Discrimination.

Mr. Bloom speaks frequently to employer groups on a wide range of labor and employment law topics. He also has written extensively on labor and employment law for a variety of publications, including New England Business magazine, The Boston Globe and the Boston Business Journal. He also is editor of and a frequent contributor to the Jackson Lewis Labor & Collective Bargaining Blog.

While attending law school, he was the Executive Editor of The Advocate: the Suffolk University Law School Journal and President of the Student Bar Association.

Mr. Bloom is a diehard baseball fan. His first book, The Baseball Uncyclopedia: A Highly Opinionated Myth-Busting Guide to the Great American Game, was published in February 2006.

Photo of Linda R. Carlozzi Linda R. Carlozzi

Linda R. Carlozzi is a Principal in the New York City office of Jackson Lewis P.C. She joined Jackson Lewis in 1997 and specializes in traditional labor law. Ms. Carlozzi counsels clients in the development and implementation of preventive labor and employee relations programs. She advises both unionized and union-free clients on a full range of labor and employee relations matters, with a focus on traditional labor law. She has represented numerous employers during arbitration proceedings and negotiations. Ms. Carlozzi also counsels employers during union organizing drives and in labor and employment law proceedings before the National Labor Relations Board, the Equal Employment Opportunity Commission and other federal, state and city administrative agencies. She regularly represents employers in collective bargaining, provides advice on a diverse range of work place issues, such as those relating to corporate transactions, best workplace practices and conducts management training on a broad range of topics.