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Third Circuit Invalidates 2010 Recess Appointment to the National Labor Relations Board

Labor and Employment Alert | May 17, 2013
By: John K. Baker and George C. Morrison

On May 16, 2013, the United States Court of Appeals for the Third Circuit, which has appellate jurisdiction over the district courts in Delaware, New Jersey, Pennsylvania, and the Virgin Islands, invalidated President Obama’s appointment of Craig Becker to the National Labor Relations Board — an appointment made during a 2010 two-week break of the United States Senate.  These breaks are often referred to as “intrasession” recesses, as opposed to “intersession” recesses when the Senate is between sessions.  Similar to the D.C. Circuit Court decision in Noel Canning v. NLRB (see January 29, 2013 News Alert, Big Win for Employer? Federal Court Invalidates 2012 “Recess Appointments” to the National Labor Relations Board), the Third Circuit held that a recess appointment can only be made during “intersessions” and not during “intrasession” recesses.

The Obama administration has filed an appeal in Noel Canning with the United States Supreme Court, arguing that the decision will invalidate numerous recess appointments.  These decisions also arguably invalidated hundreds of prior rulings issued by the NLRB and support a position that the NLRB currently has no authority to issue decisions based on a lack of quorum.  Employers with cases pending before the NLRB should immediately consult with a labor attorney for further advice on how to proceed before the agency.

We will continue to update our current and prospective clients of further developments.  Please contact John K. Baker (610.782.4913 | bakerj@whiteandwilliams.com) or George C. Morrison  (610.782.4911 | morrisong@whiteandwilliams.com), or any member of our Labor and Employment Group for further assistance.  

This correspondence should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult a lawyer concerning your own situation and legal questions.
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