The Building Tradesman Newspaper

Friday, July 04, 2014

Supreme Court's NLRB ruling 'could imperil all unions'

By The Building Tradesman

WASHINGTON (PAI) — A 9-0 U.S. Supreme Court vote ruling that President Obama illegally made three “recess appointments” in 2012 to the National Labor Relations Board raises a number of legal questions that could have far-reaching effects for organized labor.

With Republican senators filibustering scores of his appointees, including those on the National Labor Relations Board, Obama decided to appoint three NLRB members in January 2012 during a three-day break between Senate sessions. Presidents have often used their power to make temporary "recess" appointments while the Senate is on breaks.

Republicans in the Senate protested Obama's appointments, claiming the Senate was still convened in short "pro-forma" sessions, which are basically minutes-long sessions to keep the Senate in session to allow opposing parties to thwart presidential appointments.

Obama gambled on the legality of making the three appointments to the five-member NLRB, and lost. Since only two of the five NLRB members were "legitimate" under the Supreme Court's decision, the board didn't have a quorum, and "the ruling calls into question more than 1,000 NLRB decisions made during the period when the three appointees were on the board," says the Engineering News Record.

The Supreme Court case, called NLRB v. Canning, was brought by a Pepsi distributor, Noel Canning, who protested the lack of a legal quorum in his case before the NLRB.

In writing the Supreme Court's unanimous opinion, Justice Stephen Breyer said the Senate, not the president, decides when the Senate is in session. “For purposes of the Recess Appointments clause” of the Constitution, he said, “the Senate is in session when it says that it is, provided that, under its own rules, it retains the capacity to transact Senate business."

The Democratic-controlled Senate, frustrated and shedding decades of precedent that allowed the minority party the ability to hold up presidential appointees, later voted to approve Obama's three appointees to the NLRB.

Now what?

AFL-CIO President Richard Trumka, who has a law degree, downplayed the ruling. He said that since the NLRB now has five legal members, it can go ahead with its business.  The ruling “clears up the legal landscape,” Trumka, said, adding that Obama did the right thing, and “made the recess appointments because obstructionism by Republican senators was about to make the NLRB inoperable."

But the NLRB itself said it would have to revisit the cases on which the recess appointees voted. NLRB Chairman Mark Gaston Pearce said in a statement that "we are analyzing the impact the court’s decision has on cases in which the January 2012 recess appointees participated. Today, the board has a full contingent of five Senate-confirmed members who are prepared to fulfill our responsibility to enforce the National Labor Relations Act.  The agency is committed to resolving any cases affected by today’s decision as expeditiously as possible.”

And a statement from the Communication Workers of America said: “For thousands of workers, this decision has real-life consequences. Some 120 decisions made by the National Labor Relations Board in the period contested by the Noel Canning lawsuit may be challenged and justice for thousands of workers will be delayed, and in practice, denied,” CWA concluded.

(There is so much uncertainty about the ruling that news outlets and pundits have varied on whether the number is 120 or 1,000 NLRB cases that are affected by the Supreme Court's ruling).

Both Denise Gold, the Associated General Contractors of America's associate general counsel, as well as a lawyer for the Associated Builders and Contractors, told the ENR that none of the affected NLRB cases directly involve the construction industry. Gold said that the current board, with a majority of Obama's appointees, is now free to "rubber stamp" the illegitimate board's rulings.

The NLRB is the first line of defense for workers who feel they are treated illegally at the workplace. Congress enacted the National Labor Relations Act ("NLRA") in 1935 to protect the rights of employees and employers, to encourage collective bargaining, and to curtail certain private sector labor and management practices, which can harm the general welfare of workers, businesses and the U.S. economy.

Ian Millhiser, writing for the liberal website Think Progress, warned that the effects of the ruling risks the very existence of the NLRB and "could imperil all unions" if there is an anti-union president and/or anti-union Senate majority in the coming years.

"The fullest impact of this decision, however, will likely be felt in 2018," Millhiser wrote. "That’s when the five-year terms of the NLRB’s current slate of members expire. If an anti-union president controls the White House in 2018, they will be able to effectively invalidate labor protections that have existed since the Franklin Roosevelt Administration by refusing to nominate anyone to this Board.

"But even if the president supports allowing federal labor law to function in 2018, they will be unable to keep the NLRB functioning if a majority of the Senate is determined to shut down federal labor protections. That is the most important impact of Noel Canning. It means that every five years the Senate will have the unilateral authority to turn off decades of protections for American workers." (Press Associates contributed)