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Working In These Times

Tuesday, Jun 25, 2013, 1:27 pm

Big Business Scores Another Win as Supreme Court Takes Up Presidential Appointments to NLRB

BY Bruce Vail

The Supreme Court announced it will hear Noel Canning v. NLRB, which questions the legality of labor board appointments Obama made during congressional recess. (Kate Mereand-Sinha / Flickr / Creative Commons)  

The U.S. Supreme Court announced Monday that it will hear a court case involving President Barack Obama’s appointments to the National Labor Relations Board (NLRB), a move that promises to prolong bitter partisan political clashes over the agency for another year or more.

The case—Noel Canning v. NLRB [PDF]—does not concern labor law itself, but rather questions the limits of the president’s power to make temporary “recess” appointments to federal agencies. Obama made several such recess appointments to the NLRB in 2011, but they were ruled unconstitutional in January by a federal appeals court in the Canning case, thus setting the stage for this  review by the top court.

Larry Cohen, President of Communications Workers of America (CWA), says a Supreme Court ruling may provide constitutional clarity on presidential appointments but does nothing for labor unions in their efforts to protect workers’ legal rights at the NLRB or in other governmental initiatives backed by labor.

Cohen predicts that the court will rule against Obama in its decision, expected next year. “Given the history of this [Supreme] Court, we have to assume the worst," he says.

“Behind this, the real problem is that the Senate won’t confirm nominees for a whole host of the president’s nominees,” he tells Working In These Times. To attack this problem directly, Cohen is one of the leaders of a lobby effort to convince Senate Democrats to change the rules so that Senate Republicans can no longer indefinitely delay up-or-down votes on Obama nominees, as was the case with two NLRB appointments in the Canning case.

“There is a window right now for the Senate to make rule changes that are needed,” Cohen insists. If the body does not act by August 27, when the term of office of NLRB chair Mark Gaston Pearce expires, Cohen says, “the NLRB will collapse."

What Cohen means is this: Unless the Senate approves Pearce’s re-nomination, the voting strength of the board will fall to only two, below the three-person quorum for its continued legal operation.

“That would be a dismal outcome for 80 million American workers” whose labor rights could not be enforced by the shrunken NLRB, Cohen says. But this is the outcome that is being sought by anti-union lobby groups like the U.S. Chamber of Commerce and its Republican allies, the CWA president continues, so it is imperative that Senate Democrats act now to change the rules governing the confirmations of Obama administration appointees.

The Chamber of Commerce has been a prime mover in the attacks on the NLRB and even sponsored the Washington State trucking company Noel Canning in its lawsuit against the agency. On Monday, Chamber President Tom Donohue hailed the Supreme Court action, stating the "decision to review this case is welcome news. We warned last year that ... a cloud of uncertainty covered the agency and its work. We fought on behalf of our member [Canning]. ... We are ready to fight for our member before the nation's highest court." 

Charged with implementation of the landmark National Labor Relations Act of 1935, the NLRB is the only federal government agency that has the power to enforce workers’ collective bargaining rights in the workplace, Cohen emphasizes. If allowed to fall victim to Republican obstructionism now, the damage to workers will be lasting, and perhaps irreversible, he says.

Note: The Communications Workers of America is a sponsor of In These Times.

Bruce Vail is a Baltimore-based freelance writer with decades of experience covering labor and business stories for newspapers, magazines and new media. He was a reporter for Bloomberg BNA's Daily Labor Report, covering collective bargaining issues in a wide range of industries, and a maritime industry reporter and editor for the Journal of Commerce, serving both in the newspaper's New York City headquarters and in the Washington, D.C. bureau.

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