| WASHINGTON/NEW YORK
WASHINGTON/NEW YORK Jan 12 When the U.S.
Supreme Court hears arguments on Monday in a case involving soda
bottler Noel Canning Corp., presidential appointment power will
be the main dispute, but the case will also put on display one
of Washington's most politically polarizing agencies - the
National Labor Relations Board.
Created nearly 80 years ago to supervise union elections and
protect workers' rights to organize, the NLRB is a battleground
for pro-labor Democrats and pro-management Republicans.
Deep disagreement between the two sides over the NLRB's role
- and over organized labor itself - makes disputes involving the
board uncommonly bitter and subjects its agenda to constant
reshaping, depending on which party controls the White House.
"It's no accident ... that this major constitutional
showdown is occurring over appointments to the board," said
AFL-CIO General Counsel Craig Becker, a former board member.
Monday's case began as a labor dispute. The NLRB found in
February 2012 that Noel Canning, a Pepsi bottler in Yakima,
Washington, had reneged on a verbal contract during union
negotiations. The company appealed to the courts, attracting the
support of the U.S. Chamber of Commerce, conservative interest
groups and Republican leaders in Congress. The case evolved into
a constitutional challenge to the president's power to make
appointments to key posts without Senate confirmation.
At issue are "recess appointments" made in January 2012 by
Democratic President Barack Obama to the NLRB. Two of these
appointees presided over the board's Noel Canning deliberations,
which the company and its supporters are contending was invalid.
An NLRB spokesman declined to discuss the case.
Since its Great Depression origins, discord over the NLRB
and the labor law it enforces have led to policy flip-flops and
vacillating oversight as political power shifts in Washington.
One measure of this is agency data on how often the board
seeks court injunctions. In cases where it suspects a labor law
violation, the five-member NLRB board can authorize seeking a
court order, or injunction, telling an employer to halt a
questionable practice while a case moves forward.
Agency data for 1976-2011 show that when Democrats are in
the White House, injunction authorizations rise, but when
Republicans take over, authorizations decline, reflecting deep
differences between the two parties about to what extent the
board should intervene in labor disputes.
Another indicator is sometimes startling flip-flops on labor
law issues, experts said. Unlike courts, the NLRB is not bound
by its prior case precedent and can alter past positions.
For instance, the board has reversed course on whether
graduate students at private universities can join labor unions.
In 2000, under Democratic President Bill Clinton, the NLRB said
New York University graduate students could unionize.
In 2004, under Republican President George W. Bush, the
board reversed that decision. Then under Obama, it said in 2012
that it would reconsider the Bush-era determination, though the
union withdrew its case in a deal with the university.
"It's not good for the constituency the NLRB serves -
whether it's employees, employers or unions - to have rules
always in flux," said Marshall Babson, an NLRB member during the
Republican administration of President Ronald Reagan.
'G-- D--- LABOR BOARD'
"This agency has been controversial from Day One," said
former NLRB Chair Wilma Liebman in an interview.
An October 1938 article in Fortune, a business magazine, was
headlined, "The G-- D--- Labor Board," and called the law it was
supposed to enforce a "patently one-sided" pro-union statute
that was the most "bitterly contested" of all Democratic
President Franklin Roosevelt's New Deal legislation.
A Republican-backed effort led to management-friendly
amendments to the law in 1947. Liebman said modern-day board
members still debate whether the agency's primary mission is
enforcing the original statute or the amendments.
"That's one of the things that has created the flip
flopping, the dissenting opinions, so much controversy," Liebman
said. "It's a statute that was never fully accepted."
The five-member board, picked by the president and subject
to U.S. Senate confirmation, decides hundreds of cases each
year. Three members are needed to decide a case. Members'
five-year terms are staggered, with one expiring each year. Some
board vacancies have gone unfilled in recent years.
Before Obama installed the recess appointees contested by
Noel Canning, the board had only two members and could not take
official action. If the soda bottler prevails, the practical
fallout for the NLRB will be limited. The Senate cut a deal in
July that led to the confirmation of five NLRB members, marking
the first time in a decade the board had all its seats filled.
If Noel Canning wins, those members will likely have to
re-decide more than 100 cases pending before U.S. appeals courts
that challenge decisions made in part by recess appointees,
But the larger question is whether the case could hobble
efforts by Obama - and future presidents - to overcome political
gridlock and fill key posts across the government.
One NLRB member's term expires in December. So the turbulent
agency's next vacancy - and another potential confirmation fight
- is less than a year away.