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Another circuit has joined the D.C. Circuit in its Noel Canning decision.  The Third Circuit’s decision in NLRB v. New Vista Nursing and Rehabilitation joined Noel Canning in interpreting the Recess Appointments Clause of Article II of the Constitution, a clause giving the President the power to fill vacancies during the recess of the Senate without the advice and consent of Congress, to apply to intersession breaks only.

The Third Circuit analyzed the validity of the appointment of Member Craig Becker which was done during a seventeen-day intrasession break in March 2010.  The court analyzed the Recess Appointments Clause through textual and historical statutory interpretation, and in light of historical practices, the separation of powers doctrine, and other doctrines.  Where Noel Canning held that vacancies must happen within the recess, the New Vista Court did not find it necessary to grapple with this question.

Noel Canning is ferrying along through the normal channels of the Supreme Court.  The petition for certiorari was granted on June 24.  Argument is likely to be heard early in the new term which starts in October.

Meanwhile, the Obama Administration has submitted the names of five nominees to the Senate for approval.  The Senate Committee on Health, Education, Labor & Pensions approved the nominees and the five names are now headed to the full Senate for confirmation.  Once the Board is fully and properly constituted, the importance of this decision will diminish.  Until that point, potentially every act the Board takes could be vacated and will have to be redecided.  We will keep you apprised of any new developments.

Brody and Associates regularly advises its clients on union-related matters and provides union-free training.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.