BRUCE J. BARON, ESQ.
On May 16, 2013, a
three-judge panel of the Court issued a 2-1 panel decision on a NLRB petition
to enforce its decisions in an Unfair Labor Practice proceeding that grew out
of a dispute about whether Charge Nurses at a New Jersey Nursing Home were
Supervisors that could not be unionized: NLRB
v. New Vista Nursing and Rehabilitation, LLC. New Vista, represented by Louis J. Capozzi,
Jr., Esq., filed its own action before the Court to have the Board’s decisions
vacated and enforcement denied, in part because, when the decisions were issued
the Board did not have sufficient members who were properly appointed by the
President to sustain its jurisdiction and authority to issue such decisions. The National Labor Relations Act (NLRA) requires
that there be three (3) properly appointed members of the Board involved in
order for the Board to take any action on case.
The Court determined that, when the Board issued the first decision in
the ULP proceeding in August 2011and one of its decisions reconsidering the
August 2011 one, it lacked the required three because one of those voting,
Member Becker, had been appointed by President Obama as a Recess Appointment
when the Senate was not “in recess” and therefore that his appointment was
unconstitutional and void.
The Court also vacated two later Board reconsideration decisions; and,
while the Court did not expressly reach the question of whether the President’s
similar Recess Appointments of three (3) members of the NLRB involved in those reconsideration
decisions (including two current members) were likewise unconstitutional, the
Court vacated those member’ decisions on that basis. The U.S. Court of Appeals for the D.C.
Circuit expressly held that those three members’ Recess Appointments were
unconstitutional in a decision on January 25, 2013.
The Federal Government, on April 25, 2013, requested the U.S. Supreme
Court to agree to hear and overturn the D.C. Circuit decision. The Federal Government is likely to take the New
Vista decision to the Supreme Court as well. It is widely believed that the Supreme Court
will agree to hear the cases because both are in disagreement with older
decisions by three other U.S. Courts of Appeal : the 2nd , the 9th
and the 11th Circuit (en banc); and, the issue involves conflicting
views about the constitutional authority of the President and the U.S. Senate
in official appointments.
The Third Circuit’s decision in New Vista addresses the
arguments that the Federal Government made in response to the D.C. Circuit’s
January 25, 2013 decision on the President’s Recess Appointment Power under
Article II, Section 2, Clause 3 of the U.S. Constitution. The majority decision is 98 pages long, with
extensive analysis of historical sources.
The dissenting opinion is 55 pages long.
The Third Circuit decision results in our client Nursing Facility’s
Charge Nurses continuing to be excluded from the Union bargaining unit. Our Firm has successfully obtained
confirmation of Charge Nursing Supervisor Status under the NLRA on the merits
in prior cases before the NLRB.
Many other NLRB enforcement actions are currently stalled in the U.S.
Courts of Appeal while the jurisdiction and authority of the Board’s current two
(2) Recess Appointment Members is being contested. The President has submitted nominations for
five (5) Members (including three of the current Members) to the U.S. Senate
for confirmation; and, hearings on those nominations began on May 16,
2013. The Board’s ability to enforce the
NLRA will continue to be limited by the Recess Appointment litigation until
either the Supreme Court resolves the Recess Appointment issue or a sufficient
number of Members is confirmed by the Senate instead of being Recess Appointed.
