The Building Tradesman Newspaper

Friday, July 12, 2013

Supreme Court to look at legality of NLRB mess

By The Building Tradesman

By Mark Gruenberg

PAI Staff Writer

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 U.S. workers and U.S. presidents.

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 Co. 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 presidents 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 Democratic President Barack 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, which hears most labor-management disputes over NLRB rulings, 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 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 and 918 others, are illegal, too.  One other circuit court sided with the D.C. judges, but other courts side with presidents.  The Supreme Court decided it must straighten out the mess.

Left unsaid in all the legal wrangling is why Obama had to make recess appointments to the board: Republican strategy to filibuster his nominees, talking them to death, and thus killing the board’s power to enforce the law, especially for workers.

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.