U.S. Supreme Court extends labor board argument, gives Republicans time

Reuters News
Posted: Dec 09, 2013 2:34 PM
U.S. Supreme Court extends labor board argument, gives Republicans time

By Amanda Becker

WASHINGTON (Reuters) - The U.S. Supreme Court on Monday extended the time it will take to hear a case challenging White House recess appointments to the National Labor Relations Board and granted the Senate's top Republican 15 minutes during the January 13 oral arguments.

The move comes in a politically charged case involving Pepsi bottler Noel Canning Corp, the authority of an agency that protects workers' rights, and the power of the U.S. president to overcome political gridlock by filling key government jobs without Senate consent. The court said it will take 90 minutes, up from 60, to hear the case.

Senate Republican leader Mitch McConnell and 44 other Republican senators filed a friend-of-the-court brief in May asserting that President Barack Obama over-reached when he named three NLRB members in January 2012 without Senate confirmation.

The senators claimed in the brief that they have "an unparalleled interest in safeguarding the chamber's constitutionally prescribed role in the appointments process."

The Republican lawmakers' stance aligns them with Noel Canning, which argues that a 2012 NLRB finding that the company had violated federal labor law during union negotiations is invalid. The reason, the company says, is that three of the NLRB's members at the time had been improperly installed by the president when the Senate was not conducting business, but was not technically in recess.

The NLRB is an independent federal agency that oversees union elections and protects the rights of private-sector employees to join together to improve wages and working conditions, with or without a union. Its proper role is frequently a point of disagreement between pro-business Republicans and Democrats, who align with organized labor.


Miguel Estrada, an appellate attorney at the law firm Gibson, Dunn & Crutcher, will represent the Republican senators before the Supreme Court. Estrada was part of the team that aided former President George W. Bush during the Florida recount that followed the 2000 presidential election.

Bush subsequently nominated Estrada to the U.S. Court of Appeals for the District of Columbia Circuit, but he was filibustered by Democratic senators who felt his record was too conservative. Early in his career, Estrada clerked for Supreme Court Justice Anthony Kennedy.

In the Noel Canning case, the president's "recess appointment" power is a key issue. The U.S. Constitution allows the president to make appointments when the Senate is in recess. Such appointments expire at the end of the congressional session and do not require Senate confirmation. Presidents from both parties have used this authority over the years.

The D.C. Circuit, which has the authority to enforce NLRB rulings, in January 2013 agreed with Noel Canning and found that Obama did not have the authority to make the appointments. But the court found no reason to disagree with the outcome of the board's decision in the case.

Openings on the five-person board have since been filled with Senate-confirmed members.

The ruling also raised questions about the validity of Obama's appointment of Richard Cordray to run the Consumer Financial Protection Board, which was made on the same day as the NLRB appointees.

(Reporting by Amanda Becker; Editing by Kevin Drawbaugh and Eric Beech)