Appointment Of A Board Member By The President Without Senate Consent Is Invalid And Therefore Rulings By A Three-Member Delegee Group That Contains Such A Member Is Vacated

In National Labor Relations Board v. New Vista Nursing and Rehabilitation (— F.3d —-, C.A.3, May 16, 2013), the United States Court of Appeals considered the validity of a ruling by the National Labor Relations Board (“NLRB”), made by a three-member delegee group, of which one member was appointed by the President without the consent of the Senate during a time when the Senate was holding pro forma meetings but taking no actions.  The court ruled that the Recess Appointments Clause of the Constitution applies only during breaks between sessions of the Senate and therefore, the President’s appointment was invalid and the delegee group consequently lacked the required three members to issue a judgment.


New Vista Nursing and Rehabilitation (“New Vista”) operated a nursing and rehabilitative care center in New Jersey.  A healthcare workers’ union (“Union”) petitioned the NLRB for certification as representative of New Vista’s nurses.  New Vista opposed certification on the grounds that its nurses were supervisors who could not unionize under the National Labor Relations Act (“NLRA”).  The NLRB’s regional director decided that the nurses were not supervisors and were permitted to unionize.  The nurses voted to unionize but New Vista refused to recognize or bargain with the Union.

The NLRB’s counsel moved for summary judgment against New Vista.  A three-member delegee group of the NLRB granted summary judgment in favor of the Union and against New Vista and refused New Vista’s request for reconsideration.  New Vista appealed to the United States Court of Appeals alleging that the three-member delegee group was improperly constituted and without the power to issue the order.


The NLRA established the NLRB is comprised of up to five members appointed by the President and confirmed with the advice and consent of the Senate.  It further authorizes the NLRB to delegate to any group of three or more of its members any or all of its powers.

At issue here is whether all three members of the delegee group that decided the New Vista matter were valid appointees to the board, because if not, the delegee group would have lacked the required three members.  Specifically at issue was whether the appointment by the President of Craig Becker, one of the three delegees, during a 17-day interval in a 2010 Senate session was valid.  During this 17-day interval, the Senate did not conduct business but was not between sessions.  New Vista argued that such an appointment was not permitted by the Constitution’s Recess Appointments Clause.  The Recess Appointments Clause states, “The President shall have power to fill up all vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the end of their next session.”

Recently, in Noel Canning v. NLRB, 705 F.3d 490 (D.C. Cir. 2013), the United States Court of Appeals ruled that NLRB orders made without a quorum of at least three validly appointed members were invalid.  The District of Columbia Circuit Court of Appeals also held that appointments made without Senate consent during intrasession breaks when the Senate held pro forma sessions but took no action were also invalid.  The NLRB has appealed the Noel Canning case to the U.S. Supreme Court.

The New Vista case differs from Noel Canning in that the court’s analysis focused on the legitimacy of the membership of the three-member delegee group, rather than the quorum of the entire board, the New Vista court explained.  The New Vista court acknowledged that recent presidential administrations have made hundreds of such appointments.  Nonetheless, the court ruled that these appointments are invalid because the Recess Appointments Clause is phrased as an exception to the norm, which is the appointment of government officers by the President with the advice and consent of the Senate.

The court stressed that the appointments provision provides that recess appointments “shall expire at the end of their next session.”  The court explained that this limitation seems to exist to provide the Senate an opportunity to provide its advice and consent to a recess appointment during that next session.  If the Constitution were intended to allow for recess appointments during any break in a session, the appointments would logically last until the end of that session, not the next session, the court reasoned.  Further, the use of “next session” rather than “next meeting” implies a specific type of break that occurs in between sessions, not within a session.

The court held that the phrase “Recess of the Senate” must refer only to breaks in between sessions.  To conclude otherwise would lead to the absurd result of the President being able to make recess appointments “simply by waiting until Senators go home for the evening.”

Since the Senate did not confirm Becker’s appointment and was not in recess at the time of Becker’s appointment, his appointment to the NLRB was invalid.  The delegee group that ruled against New Vista and in favor of the Union lacked the requisite three members to act on behalf of the NLRB.


If you have any questions concerning the content of this Legal Alert, please contact the following from our office, or the attorney with whom you normally consult.

Bruce A. Scheidt | 916.321.4500