Corporate Accountability

NLRB deal unlikely to affect U.S. Supreme Court case

By Lawrence Hurley


NEW YORK, July 17 (Reuters) – A deal with U.S. senators allowing President Barack Obama to make appointments to the National Labor Relations Board (NLRB) without Republican obstruction is unlikely to stop the Supreme Court from deciding a major case concerning his previous appointees to the agency.


The Supreme Court agreed last month to hear the case of NLRB v. Noel Canning at the request of the Obama administration, which said on Wednesday its desire for a ruling remained strong, suggesting it was unlikely to back out of the case. The court is expected to hear oral arguments sometime during its next term running from October to June.


The administration went to the high court after a federal appeals court in Washington, D.C., ruled in January that the board did not have a quorum at the time it ruled against Noel Canning, a bottling company, because three of the five sitting members were not valid appointments. The board needs three members to have a quorum. The decision cast into doubt hundreds of NLRB decisions.


Obama’s so-called “recess appointments” of the three members who were judged invalid took place on Jan. 4, 2012, when the Senate was in session but not conducting business. Presidents from both political parties have used their recess appointment authority over the years when they are facing difficulties winning Senate approval of nominees. The broad appeals court ruling severely curtailed the scope of the recess appointment power.


The Senate deal announced on Tuesday was reached when Republicans buckled under a threat by Senate Majority Leader Harry Reid of Nevada, a Democrat, to change Senate rules due to Republican attempts to block a number of Obama nominees.




The deal raised a question as to whether the Supreme Court case could be dropped based on the theory that the newly convened board could revisit the earlier decisions now hanging in the balance and then re-issue them.


White House press secretary Jay Carney said on Wednesday that the administration’s desire for a ruling on the recess appointment issue remains “very strong,” suggesting there will not be a change of course.


He said the views of White House officials on the recess appointment issue “have not changed” as a result of the Senate deal.


In the unlikely event that the administration were to adopt a new legal strategy to avoid a Supreme Court ruling, the NLRB would have to voluntarily agree to reconsider hundreds of cases that were decided while there were questions over whether the board had a quorum, said Patrick Scully, a lawyer who regularly represents employers before the board.


“I just don’t see that happening,” he said, basing his observation on what he said was his personal experience with the board’s lawyers and their view of the recent controversy.


Doug Kendall, president of the left-leaning Constitutional Accountability Center, which backs the Obama administration in the case, said the White House has a strong desire to have the Washington appeals court’s decision overturned because it interpreted the president’s recess appointment power so narrowly. If the administration were to ask the Supreme Court to dismiss the case, the appeals court ruling would still be binding in future cases.


“I don’t think the administration can leave the ruling on the books,” Kendall said.




A 2010 Supreme Court case that also involved the NLRB suggests the board would not have the authority to reconsider the cases of its own volition. That case, New Process Steel v. NLRB, was on a similar issue as the Noel Canning case about whether the board could act when it only had two members.


Before deciding the case in favor of New Process Steel – the employer – the court asked the parties whether the outcome should be affected by the subsequent appointment of two new board members, meaning the board now had four members.


Then-Solicitor General Elena Kagan, representing the NLRB, told the court in a letter that the board “lacks the ability to take any action” because the matter was before the courts. Obama appointed Kagan to the Supreme Court in 2010.


John Elwood, who worked on appointment issues in the Justice Department during the George W. Bush administration, said Kagan’s letter was likely to have a considerable influence on how the Justice Department acts.


“This is the position they took under this administration in a closely related issued by an actor held in high regard by the Supreme Court and the administration,” he said.


The NLRB is a government agency charged with remedying unfair labor practices. Bottler Noel Canning, backed by the U.S. Chamber of Commerce, argued that an NLRB ruling for the International Brotherhood of Teamsters, in a disagreement over failed contract negotiations, could not be enforced due to the recess appointment issue.


Other appeals courts have issued similar rulings finding the recess appointments invalid, including one in Richmond, Virginia, which was issued on Wednesday.

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