The U.S. Supreme Court has ruled unanimously that President Obama exceeded his authority when he named three members to the National Labor Relations Board in January 2012 during a three-day break between Senate sessions.
But the court’s unanimity about that judgment thinly veils a split. Five justices signed on to the majority opinion. The other four, though concurring that Obama went beyond his powers, said the majority should have gone much further in limiting presidential authority.
The ruling calls into question more than 1,000 NLRB decisions made during the period when the three appointees were on the board, according to Associated Builders and Contractors.
Geoff Burr, ABC vice president of government affairs, said that none of those cases directly involve construction firms, but added that construction is affected by NLRB non-construction decisions.
Denise S. Gold, Associated General Contractors of America associate general counsel, said that several NLRB non-construction cases have a significant impact on construction companies.
Gold said those cases include the July 2012 Banner Health System decision, which held that "a company policy asking employees not to discuss ongoing internal investigations violates the National Labor Relations Act, and the [December 2012] WKYC-TV case, in which the board overturned 50 years of precedent to hold that an employer signatory to a collective-bargaining agreement with a dues check-off provision must continue to deduct dues from employees' paychecks even after the agreement expires."
She also said that the current board, which has a full complement of five Senate-confirmed members, "is free to effectively 'rubber-stamp' those invalidated decisions and is likely to do so."
Moreover, Gold said, "The most immediate and practical impact of the Supreme Court's decision is to cause a substantial slow-down of processing and backlog of cases at the board as it reviews those cases."
The case before the high court, NLRB v. Noel Canning, deals with Obama’s Jan. 4, 2012, appointments of Sharon Block, Richard Griffin and Terence Flynn to the NLRB. At that time, the Senate was in a recess that began on Dec. 17, 2011. The chamber then held brief pro forma sessions periodically until it came back into session on Jan. 23, 2012.
Two key items at issue in the case were the Constitution’s Recess Appointments Clause—which gives a president the authority “to fill up all Vacancies that may happen during the Recess of the Senate”—and what constitutes a Senate recess.
Justice Stephen Breyer, writing for the court majority, said that the appointments came while the Senate was in a three-day break between pro forma sessions, but added, “Three days is too short a time to bring a recess within the scope of the [Recess Appointments] Clause.”
The case stems from a lawsuit brought by Noel Canning, a Pepsi-Cola distributor, which contended that the three NLRB appointments were invalid because the three-day interval between pro forma Senate sessions wasn’t a long enough break for them to be covered by the appointments clause.
As for the NLRB, Obama has since nominated, and the Senate confirmed, other individuals to replace Block, Griffin and Flynn on the board.
NLRB Chairman Mark Gaston Pearce said in a statement, “We are analyzing the impact that the court’s decision has on board cases in which the January 2012 recess appointees participated.” He added that the board is at full strength with five Senate-confirmed members and said the NLRB “is committed to resolving any cases affected by [the] decision as expeditiously as possible.”
The NLRB has been the focus of fierce partisan debate for years. When at its full strength, the board is split between Democrats and Republicans. Whichever party holds the White House can name three board members.
As a prime federal arbiter of labor issues, the NLRB also sits at the center of disputes between businesses and organized labor.
ABC, which led an industry coalition that intervened in the case, hailed the decision. Burr said in a statement that the decision “is a victory for ABC, the Constitution and our system of checks and balances and it serves as a clear rejection of the president’s unprecedented expansion of executive authority.”
AFL-CIO President Richard Trumka said in a statement that Obama “did the right thing and acted on solid legal authority” in making the 2012 NLRB appointments. Trumka added, “We are confident the NLRB will handle the pending cases impacted by Noel Canning efficiently and expeditiously.”
In the separate, four-justice opinion, Justice Antonin Scalia concurred that Obama exceeded his authority, but they said the majority’s finding would have serious negative consequences.
Scalia wrote, “The majority replaces the Constitution’s text with a new set of judge-made rules to govern recess appointments.”
He added, “The majority’s methodology…all but guarantees the continuing aggrandizement of the Executive Branch.”