Supreme Court postpones top labor case involving NLRB rulings

WASHINGTON – The U.S. Supreme Court has apparently postponed a top labor case, deciding if the National Labor Relations Board was legally constituted or not, until next year. But that still leaves the justices with other cases important to workers on their docket, in the court session opening Oct. 7 – if that session occurs at all.

Noel Canning vs. NLRB is not on the court’s schedule of arguments – the oral hearings before the nine justices – for October, November or December. The case raises the question of whether President Obama’s “recess appointees” to the board, and some 1,000 cases they ruled on, were legal or not.

The Noel Canning company argues they weren’t, since Obama named the recess appointees on Jan. 4, 2012, when the Senate technically wasn’t in recess. It was holding one-minute-or-less sessions every three days – and doing no business – precisely, Republicans said, to prevent Obama from making such recess appointments.

That means, Noel Canning and its business and Republican allies say, that the NLRB’s ruling that Canning broke labor law during Teamsters Local 760’s organizing drive at the Washington state firm is illegal. A key U.S. appeals court ruled for Canning.

Left unsaid in all the legal arguing: Until two months ago, Senate Republicans’ successful filibusters prevented him from making permanent appointments to the five-member board, which governs labor-management relations for 85 million workers.

And no appointments to the board – whether recess or permanent – equals no justice for workers whose firms broke labor law, unions and their allies point out.

“The Court of Appeals erred in holding the recess appointments clause does not authorize presidential appointments during intra-session recesses,” the Justice Department, defending Obama and the NLRB, says in its brief to the high court. “The plain meaning of the term ‘recess’ — a period of cessation from usual work — applies to both inter- and intra-session (Senate) recesses.”

Inter-session recesses are recesses between Senate sessions, usually at the end of a year. Intra-session recesses are shorter, but can be up to a month or more, as when lawmakers go home in August or take breaks for federal or religious holidays.

“The court of appeals” which ruled for the company and against the NLRB, “thought the clause refers to ‘the’ (rather than ‘a’) recess in order to refer to one recess, which it further surmised must be an inter-session recess. But the…phrase ‘the recess’ was, by 1787, regularly used to describe the equivalent of intra-session breaks of the British parliament, of state legislatures …and of the constitutional convention itself.

“Excluding intra-session recesses from the recess appointments clause would undermine its central purposes, because it would prevent the president from being able to fill offices, and exercise his constitutional responsibility to take care laws be faithfully executed, even when the Senate is unable” to approve his nominees, the Justice Department argued. In short, tossing out the recess appointments, the administration argues, means the NLRB could not function.

The justices, however, appear to have put off that whole mess until next year. There’s another important case they didn’t put off, scheduled for Oct. 8. A ruling for the Republican National Committee in Shaun McCutcheon and RNC vs. Federal Election Commission would trash what remains of federal restrictions on campaign financing.

That alarms a whole host of unions, who filed friend-of-the-court briefs with the justices arguing for the FEC, and for current legal restrictions on individual donations to political parties, committees and campaigns. Almost three years ago, in the infamous Citizens United ruling, the justices let corporations and unions spend unlimited sums on politics – as long as they did so independently of the parties and campaigns.

The result was a tsunami of corporate and right wing cash — $236 million from the Koch brothers alone. Now, the GOP wants to trash the remaining contribution limits, as a violation of free speech. Unions and their allies want to keep the limits.

Demos and the Communications Workers authored one of the friend-of-the-court briefs, which show the justices where major groups stand on the issue. The American Federation of Teachers and other groups joined them. AFSCME, the Service Employees, the AFL-CIO, and the National Education Association authored the other.

“Contribution limits…protect the legitimacy of our democratic government by combating the appearance and reality of corruption,” the Demos-CWA-AFT brief says. “Contribution limits impose only an indirect burden on (free) speech…Even with the limits in place, confidence in government is by some measures at an all-time low,” the two unions add. Throwing the limits out is “particularly inopportune” because of “the lack of confidence is tied to the public perception that government is more responsive to financial supporters than to the public interest.”

McCutcheon is scheduled for Oct. 8, but the court may not be in session because Congress has not approved money bills to keep the government going. A note on its website, confirmed by its press office, says the court will stay open through Oct. 4, but adds to check back for further information should a government shutdown occur.

Photo: Though the push for a full NLRB finally succeeded, some 1,000 rulings important to workers that the NLRB made in the meantime are being challenged by big business. Final settlement won’t come until the Supreme Court rules on Noel Canning vs. NLRB. CWA


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.