Third federal appeals court invalidates Obama NLRB recess appointments

A third federal appeals court ruled Wednesday that President Obama's recess appointments of three National Labor Relations Board members was unconstitutional.

A divided three-judge panel of the 4th U.S. Circuit Court of Appeals joined federal appeals courts in the District of Columbia and Philadelphia in ruling that the Senate wasn't really in recess when Obama filled the vacancies during an extended holiday break in January 2012. The U.S. Supreme Court has agreed to hear the D.C. case.

However, the legal dispute may have been resolved politically. Obama on Tuesday nominated two new NLRB appointees to replace those opposed by Senate Republicans, clearing the way for a confirmation vote next week and perhaps making the Supreme Court review unnecessary.

The Justice Department, which defended Obama's appointments, did not immediately return a message. NLRB spokesman Gregory King said the agency does not comment on court rulings.

On Jan. 4, 2012, Obama appointed Deputy Labor Secretary Sharon Block, union lawyer Richard Griffin and NLRB counsel Terence Flynn to fill vacancies on the five-member board, which referees labor-management disputes and oversees union elections. GOP senators opposed Block and Griffin, who are Democrats. Flynn is a Republican.

Obama withdrew the nominations of Griffin and Block on Tuesday and submitted the names of former AFL-CIO lawyer Nancy Schiffer and Kent Hirozawa, counsel to NLRB Chairman Mark Pearce.

At the time of the disputed appointments, the Senate was taking a holiday break but was conducting brief, pro-forma sessions every few days as part of a GOP strategy to prevent Obama from filling vacancies through recess appointments. The administration contended, however, that the break qualified as a recess because there were not enough senators at work to conduct business.

The Richmond-based appeals court disagreed. Judge Clyde H. Hamilton wrote that the framers of the Constitution meant to limit recess appointments to the period between congressional sessions, and that's how it was done until a 1921 attorney general's opinion provided the looser interpretation relied upon by the Obama administration.

Hamilton and Judge Allyson K. Duncan, who joined in the majority opinion, are Republican appointees. Judge Albert Diaz, who concurred in part of the majority opinion but disagreed on the key constitutional issue, was appointed by Obama.

The 4th Circuit's decision invalidated NLRB decisions that Enterprise Leasing Company Southeast and Huntington Ingalls Inc. violated federal labor law by refusing to bargain with unions certified by the board to represent the companies' employees. Those decisions, and hundreds of others called into question by the three appeals courts' rulings, could be reinstated by the newly appointed NLRB.