Supreme Court to rule on legality of NLRB

WASHINGTON (PAI) – The U.S. Supreme Court will try to sort out the political war over the legality of “recess appointments” to the National Labor Relations Board (NLRB), an issue important to both the Obama administration and U.S. workers.

The justices said on June 24 they would hear arguments on the dispute during their session that starts in October. The case pits the Noel Canning Company of Washington state against the labor board and the NLRB’s recess appointees. Business groups have already joined the firm’s stand, as has the GOP. The court set no date.

Solving the dispute is important to workers because the NLRB’s decisions govern most private-sector labor-management relations in the U.S. If the NLRB can’t rule because its appointees are illegal, it can’t enforce the law – at least at the board level.

And it’s important to President Obama and anyone who will sit in the Oval Office because the court will say when a president can use recess appointments to fill any administration vacancies when the Senate refuses.

Noel Canning won in lower courts, overturning an NLRB ruling in a dispute with Teamsters Local 760. The company argued that President Obama’s “recess appointments” of NLRB members Sharon Block and Richard Griffin were illegal, and thus the ruling against it was illegal. The two recess appointments in January, 2012 gave the NLRB three members, the minimum it needs to operate.

The U.S. Circuit Court of Appeals for the District of Columbia, itself a GOP-dominated body because of vacancies the Senate has also refused to fill, agreed with the company.

The D.C. judges, all GOP-named, said Obama’s appointments were illegal because the Senate, which is supposed to vote on NLRB nominees, wasn’t in recess then. The Senate had been convening every three days for pro forma one-minute-or-less sessions, and the justices asked the attorneys on both sides to answer the question of whether such pro forma sessions mean there are recesses or not. The Obama administration held that the minute-or-less sessions were not true sessions but rather were schemes to prevent the president from performing his constitutional duty to fill vacancies.

The D.C. court said the Senate wasn’t in recess, so Obama could not appoint Griffin and Block and the Noel Canning ruling they voted on along with 918 others, are illegal. One other circuit court sided with the D.C. judges, but other courts side with presidents. The Supreme Court has decided it must now straighten out the mess.

Left unsaid in all the legal wrangling is that the Obama administration made the recess appointments in the first place because, without a functioning board, the nation’s workers have lost the option of seeking relief from the NLRB, a body created in the 1930’s to ensure that workers’ rights are protected.

In the meantime, Obama re-nominated Griffin and Block and the one NLRB member the Senate actually confirmed, chairman Mark Gaston Pearce, plus two management-side lawyers for minority-party NLRB seats. The Senate Labor Committee approved all of them, but at least one Republican, Lindsey Graham, R-S.C., threatens to filibuster all five. Pearce’s term ends Aug. 27.

And unions, led by the Communications Workers, are carrying on a mass campaign – – to get the Senate to vote on all five nominees, especially before Pearce’s term ends.

Photo: The CWA has been building a campaign to pressure the Senate into approving all five of President Obama’s nominees to the NLRB. CWA/Flickr


Mark Gruenberg
Mark Gruenberg

Mark Gruenberg is head of the Washington, D.C., bureau of People's World. He is also the editor of Press Associates Inc. (PAI), a union news service in Washington, D.C. that he has headed since 1999. Previously, he worked as Washington correspondent for the Ottaway News Service, as Port Jervis bureau chief for the Middletown, NY Times Herald Record, and as a researcher and writer for Congressional Quarterly. Mark obtained his BA in public policy from the University of Chicago and worked as the University of Chicago correspondent for the Chicago Daily News.