Nat'l Labor Relations Bd. v. New Vista Nursing & Rehab., s. 11–3440

• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
• Writing for the Court: SMITH
• Citation: 719 F.3d 203
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner 1199 Seiu United Healthcare Workers East, N.J. Region, Intervenor v. NEW VISTA NURSING AND REHABILITATION, Respondent. New Vista Nursing And Rehabilitation, LLC, Petitioner v. National Labor Relations Board, Respondent. 1199 Seiu United Healthcare Workers East, N.J. Region, Intervenor.
• Docket Number: 12–1027,12–1936.,Nos. 11–3440,s. 11–3440
• Decision Date: 16 May 2013

719 F.3d 203

NATIONAL LABOR RELATIONS BOARD, Petitioner
1199 Seiu United Healthcare Workers East, N.J. Region, Intervenor
v.
NEW VISTA NURSING AND REHABILITATION, Respondent.
New Vista Nursing And Rehabilitation, LLC, Petitioner
v.
National Labor Relations Board, Respondent.
1199 Seiu United Healthcare Workers East, N.J. Region, Intervenor.

Nos. 11–3440, 12–1027, 12–1936.

United States Court of Appeals,
Third Circuit.

Argued March 19, 2013.
Filed: May 16, 2013.

[719 F.3d 207]

Beth S. Brinkmann, [argued], Sarang V. Damle, Benjamin M. Shultz, Scott R. McIntosh, Melissa N. Patterson, United States Department of Justice, Julie B. Broido, Linda Dreeben, Milakshmi V. Rajapaksem, [argued], National Labor Relations Board, Washington, DC, for Petitioner.

William S. Massey, Gladstein, Reif & Meginniss, New York, NY, for Intervenor–Petitioner.

Louis J. Capozzi [argued], Capozzi & Assoc., Harrisburg, PA, Morris Tuchman, New York, NY, for Respondent.

Victor Williams, Catholic University of America, Washington, DC, for Amicus–Petitioner.

Before: SMITH, GREENAWAY JR, and VAN ANTWERPEN, Circuit Judges.

OPINION
SMITH, Circuit Judge.

The Recess Appointments Clause in the Constitution provides that “[t]he 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.” U.S. Const. art. II, § 2, cl. 3. The central question in this case is the meaning of “the Recess of the Senate,” which is the only time in which the president may use his power to recess appoint officers. Three definitions have been offered: (1) breaks between sessions of the Senate

[719 F.3d 208]

(i.e., “intersession breaks”); (2) these intersession breaks as well as breaks within a session (i.e., “intrasession breaks”) that last for a non-negligible time, or (3) any break in Senate business that makes the body unavailable to provide advice and consent on the president's nominations. This is a difficult question that has never been addressed by our Court or the Supreme Court. We hold that “the Recess of the Senate” in the Recess Appointments Clause refers to only intersession breaks. As a consequence, we conclude that the National Labor Relations Board panel below lacked the requisite number of members to exercise the Board's authority because one panel member was invalidly appointed during an intrasession break. We will therefore vacate the Board's orders.

I

New Vista operates a nursing and rehabilitative care center in Newark, New Jersey. On January 25, 2011, a healthcare workers' union petitioned the National Labor Relations Board (“the Board”) for certification as the representative for New Vista's licensed practical nurses (“LPN”). New Vista opposed this certification on the grounds that its LPNs are supervisors who cannot unionize under the National Labor Relations Act (“NLRA”), 29 U.S.C. § 152(3), (11). See NLRB v. Kentucky River Cmty. Care, Inc., 532 U.S. 706, 709, 121 S.Ct. 1861, 149 L.Ed.2d 939 (2001) (explaining that supervisors do not fall within the NLRA's definition of a bargaining unit). On March 9, 2011, the Board's regional director determined that New Vista's LPNs were not supervisors and thus certified the union as well as ordered an election. New Vista appealed to the Board, which affirmed the regional director's order.

The union won a majority in the ensuing election. New Vista refused to bargain with the union,¹ which then filed a charge of unfair labor practices against New Vista before the Board. On behalf of the union, the Board's general counsel moved for summary judgment against New Vista, which New Vista opposed. The Board unanimously granted summary judgment in favor of the Union and against New Vista in a “decision and order” dated August 26, 2011.

This order was issued by a three-member “delegee group” of the Board. The NLRA establishes that the Board is composed of up to five members, appointed by the president and confirmed with the advice and consent of the Senate. 29 U.S.C. § 153(a). Section 153(b) authorizes the Board to “delegate to any group of three or more members any or all of the powers which it may itself exercise.” Id. § 153(b). These delegee groups must “maintain a membership of three in order to exercise the delegated authority of the Board.” New Process Steel, L.P. v. NLRB, 560 U.S. 674, 130 S.Ct. 2635, 2644, 177 L.Ed.2d 162 (2010).

Importantly, this three-member-composition requirement is distinct from § 153(b)'s quorum requirements. The quorum requirements speak to the number of members who must be present to exercise the Board's powers for either the

[719 F.3d 209]

Board itself or a properly constituted three-member (or more) delegee group. See id. at 2642–43 (explaining that the “group quorum provision” “authorizes two members to act as a ... group of at least three members” but does not “authorize two members to constitute a valid delegee group”); see also id. at 2642 (defining quorum as “the number of members of a larger body that must participate for the valid transaction of business”). To have a quorum, a delegee group must have at least two of its three members present and the Board must have at least three of its five members present. 29 U.S.C. § 153(b).

In contrast, the three-member-composition requirement speaks to how many members are required for a delegee group to be a properly constituted body that can exercise the Board's powers. These different requirements are certainly related, but this case simply turns on whether the delegee group that issued the August 26 Order and the subsequent reconsideration orders had three members.

On September 7, 2011, New Vista filed a motion with the Board to reconsider the August 26 Order. The company argued that the three-member delegee group acted ultra vires because although the order is dated August 26—one day before one member, Wilma Liebman, resigned—it was not issued until it was mailed during the week of August 29. This would mean, according to New Vista, that the panel had only two members when the order was issued, thereby violating 29 U.S.C. § 153(d)'s three-member-composition requirement. The company also argued that the August 26 Order was substantively incorrect. Meanwhile, on September 13, 2011, the Board filed with this Court an application for enforcement of the August 26 Order. We granted an uncontested motion to hold in abeyance the filing of the administrative record pending resolution of the motion for reconsideration. This functionally acted as a stay of the proceedings before us.

On December 30, 2011, the Board denied New Vista's motion for reconsideration. New Vista took two actions. First, it filed a second motion for reconsideration on January 3, 2012. In this motion, the company argued that the three-member December 30 delegee group was improperly constituted and thus without power to issue the order because one of the panelists was recused from the case. The company also argued in a March 14 “further motion for reconsideration” that the December 30 Reconsideration Order delegee group was improperly constituted because one of the panelists was a recess appointee whose term concluded at the end of the Senate's 2011 session—which New Vista contended was December 17, 2007, thirteen days before the December 30 Reconsideration Order was issued.

Second, on January 9, 2012, New Vista filed a petition for review of the December 30 Reconsideration Order with this Court. We have treated this petition as a cross-petition for review opposing the Board's petition for enforcement of the August 26 Order. We also granted another Board motion to hold in abeyance the filing of the administrative record for these petitions until New Vista's second motion for reconsideration was resolved. This, again, functionally acted as a stay of the proceedings before us.

On March 15, 2012, the Board denied New Vista's second motion for reconsideration. This order did not address the company's March 14 argument that the term of one panelist had ended on December 17. On March 22, 2012, New Vista filed a third motion for reconsideration. This motion reiterated the company's March 14 argument that the December 30 delegee group was improperly constituted

[719 F.3d 210]

because the Senate's session had ended on December 17. The motion also argued that the three-member delegee group that issued the March 15 Reconsideration Order lacked three members because two of its members were invalidly appointed to the Board under the Recess Appointments Clause while the Senate was not in “recess.” In sum, New Vista argued that if the Senate's session had ended when it began using pro forma sessions, then the December 30 panel had only two members because the term of one of its members expired. But if the Senate's session did not end at that time, then the March 15 panel was improperly constituted because the president's recess appointments were invalidly made while the Senate was not in recess. The Board denied this motion on March 27, 2012. The Board also filed the administrative record with this Court on that date, thereby stripping itself of jurisdiction. See29 U.S.C. § 160(e) (“Upon the filing of the record with it the jurisdiction of the court shall be exclusive and its judgment and decree shall be final.”).

On April 4, 2012, New Vista filed a petition for review of the March 15 and March 27 Reconsideration Orders. We granted New Vista's request that this petition be consolidated with New Vista's earlier petition for review for all purposes. These consolidated petitions for review are collectively a cross petition opposing the Board's petition for enforcement of the August 26 Order.

II

We consider sua sponte whether the delegee group that issued the August 26 Order had jurisdiction. See Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986) (explaining that “every federal appellate court has a special obligation to ‘satisfy itself not...