The Supreme Court is expected to rule on a number of high-profile labor cases over the next several months touching on issues from recess appointments to forced union membership to shady alliances between unions and businesses.
The legal community is paying special attention to the Noel Canning case, which could have broad implications beyond the scope of labor and constitutional law.
The case stems from President Obama’s 2012 decision to bypass Senate confirmation and push through three nominees to the National Labor Relations Board (NLRB) using his recess authority. The Washington, D.C., Appeals Court ruled that the appointments were unconstitutional because the Senate was in pro forma session at the time of the appointments.
“This is a very high-stakes case for the institution of the presidency and the institution of the Senate. This goes beyond the NLRB and into the separation of powers,” said the Workforce Fairness Institute’s Fred Wszolek.
The Supreme Court will look to decide on what constitutes a Senate “recess,” which can open the door for the president to issue recess appointments without congressional approval. The administration has argued that pro forma sessions—during which a senator gavels the empty chamber into order before immediately adjourning—are a delaying tactic, rather than legitimate session.
Pro forma sessions have resulted in legislation, according to according to David Phippen, a labor attorney with Constangy, Brooks, & Smith.
“It’s wrong to say that the Senate didn’t conduct any business during these sessions, as the president’s supporters have argued,” he said, “On Dec. 23 , they passed an extension of the reduced payroll tax during one … that makes this a real simple case: the Senate was not in recess.”
Former NLRB General Counsel Jerry Hunter supports the appeals court’s ruling, but says a Supreme Court victory is not guaranteed.
“My concern is that Chief Justice John Roberts, particularly in light of his [Obamacare] ruling will look to duck the constitutional issue and decide this based on standing,” Hunter said.
The government argues that the Supreme Court could invalidate thousands of recess appointments that have been made over more than 200 years of American history.
“The solicitor general will argue that the DC Circuit puts handcuffs on the presidency not just with the NLRB but all government agencies,” Hunter said.
WFI’s Wszolek said that the Obama administration misreads the point of Senate confirmation.
“The separation of powers doesn’t hamstring the presidency, it moderates it,” he said. “If the court upholds Noel Canning presidents will have to start appointing people who are more confirmable, rather than shoving someone down the Senate’s throat.”
The implications of the ruling extend beyond politics to the institutional integrity of the Senate. If the president is allowed to determine unilaterally when the Senate is in session, his appointment powers could go unchecked.
“When the Senate adjourns at 5 to go have dinner, can the president just ram through a bunch of people and call them recess appointments? The answer can’t be that president alone can interpret the Constitution or set the Senate schedule,” Phippen said.
The court will also weigh in on the ability of state governments to force home healthcare workers to join politically powerful labor unions.
The case stems from an executive order signed by currently imprisoned former Illinois Gov. Rod Blagojevich, which classified 20,000 homecare workers as state employees. His successor, Gov. Pat Quinn, signed a similar order that affected 4,500 people caring for disabled persons.
Illinois contends that homecare workers are state workers because they receive tax benefits, Medicare, and Medicaid dollars to care for their wards—in many cases, elderly parents and disabled children—from the state.
“Forcing homecare providers into union ranks is just plain wrong,” said Mark Mix, President of the National Right to Work Foundation, which helped launch the suit. “We hope the High Court will protect the rights of … thousands of other care providers by striking down this constitutionally-dubious scheme.”
Wszolek said such schemes are designed to “funnel tax dollars to unions.” The state employee classification does not entitle the homecare worker to union-provided benefits, such as pensions or salary agreements. Instead it merely ensures that portions of Medicaid benefits will be taken out of a worker’s check and deposited into a union coffer.
“Medicaid rates are fixed, non-negotiable, so the union doesn’t perform any tasks to benefit the workers,” he said.
Unionizing family members who provide full-time care to relatives has been a longtime goal of powerful labor groups, such as the American Federation of State, County, and Municipal Employees and Service Employees International Union. Unions in Michigan attempted to add a similar provision to the state constitution in 2012 and were rebuffed at the polls. The Supreme Court could put the organizing tactic to rest.
“This isn’t a normal private sector labor case, this is government making an agreement on someone else’s behalf—you have state action that [NRTW] argues violates the 1st Amendment right to free speech and assembly,” Phippen said.
Quid Pro Quo
The court will also consider whether private employers can engage in quid pro quos with unions to preserve labor peace.
Florida Groundskeeper Martin Mulhall alleged that after UNITE HERE, a hospitality union, spent tens of thousands of dollars to support gambling initiatives, it was given access to employer information and casino grounds to wage a 2004 card-check campaign. A federal appeals court ruled in Mulhall’s favor.
Mulhall and his attorneys argue that the casino violated labor laws that prohibit companies from providing unions with money or other “things of value.” The provision was designed to prevent employers from bribing union officials to negotiate bad deals for workers, but has been traditionally interpreted to focus on money, rather than in-kind services, like access to grounds, according to former National Labor Relations Boardmember John Raudabaugh.
“When you let someone on your property or work a deal to get a wink and a nod for favorable terms on a first contract or in this case union political contribution, it’s obvious that [the law’s] been violated,” he said. “If this is upheld then the Supreme Court will have finally dealt the right blow to this kind of circumvention where unions use pressure to avoid campaigns and strike a deal. Deals have value.”