The Third Circuit has now joined the D.C. Circuit in finding that the National Labor Relations Board lacks authority to act because one of its members was not properly appointed:
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.
Source: National Labor Relations Board v. New Vista Nursing and Rehabilitation, Nos. 11-3440, 12-1027, 12-1936, Slip Op. at 5 (3rd Cir. May 16, 2013) [PDF]; see also Noel Canning v. National Labor Relations Board, Nos. 12-1115, 12-1153, Slip. Op. (D.C. Cir. Jan. 25, 2013) [PDF]; U.S. Const., Art. 2, cl. 3 (”The 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.”).