{"id":23133,"date":"2014-08-27T19:16:52","date_gmt":"2014-08-28T00:16:52","guid":{"rendered":"http:\/\/law.marquette.edu\/facultyblog\/?p=23133"},"modified":"2014-08-27T22:00:11","modified_gmt":"2014-08-28T03:00:11","slug":"supreme-court-review-on-labor-law-cases-noel-canning-and-harris-v-quinn","status":"publish","type":"post","link":"https:\/\/law.marquette.edu\/facultyblog\/2014\/08\/supreme-court-review-on-labor-law-cases-noel-canning-and-harris-v-quinn\/","title":{"rendered":"US Supreme Court Review: Two Labor Law Cases (Noel Canning<\/i> and Harris v. Quinn<\/i>)"},"content":{"rendered":"

\"US(This is another post in our series, Looking Back at the U.S. Supreme Court’s 2013 Term<\/a>.<\/em>) Last month I commenced a series of posts of the United States Supreme Court\u2019s labor and employment law decisions last term by blogging on the Court\u2019s decision<\/a> in the First Amendment public employee free speech case of Lane v. Franks<\/em>, No. 13-483 (June 19, 2014)<\/a>.\u00a0 In two separate blog posts, I will comment on two labor law Court decisions (NLRB v. Noel Canning<\/em> and Harris v. Quinn<\/em>) and two employee benefit\/ERISA decisions (Burwell v. Hobby Lobby Stores<\/em>, Inc.<\/em> and Fifth Third Bancorp v. Dudenhoeffer<\/em>).\u00a0 This post discusses the labor law cases.<\/p>\n

To begin, National Labor Relations Board v. Noel Canning<\/a><\/em>, 134 S. Ct. 2550 (June 26, 2014), is obviously much more than just an ordinary labor law case.\u00a0 Yes, it concerns the validity of decisions made by the National Labor Relations Board (NLRB or Board) when it had a quorum based solely on presidential recess appointments from roughly January 2012 through August 2013. \u00a0More specifically, on January 4, 2012, President Obama, faced with the prospect of another two-member Board (see below why this is a problem), used his constitutional recess appointment powers to make three intra-recess appointments.\u00a0 In an effort to prevent any intra-session appointments, the Republican-controlled House of Representatives refused to give its consent to the Democratic-controlled Senate to go into recess.\u00a0 See<\/em> U.S. Const. Art. II, sec. 5 (\u201c[n]either House, during the session of Congress, shall, without the consent of the other, adjourn for more than three days . . . .\u201d).\u00a0 In response, the Senate held very brief, pro forma sessions in which no business was conducted.<\/p>\n

<\/p>\n

So from a constitutional standpoint, Noel Canning<\/em> concerns the President\u2019s power to make recess appointments under Article II to fill federal agency positions. \u00a0\u00a0The Supreme Court held that the Recess Appointments Clause authorizes Presidents to fill existing vacancies during any recess, whether occurring during (intra-session) or between sessions (inter-session) of Congress \u2013 of sufficient length.\u00a0\u00a0 Under this holding, the Senate is \u201cin session\u201d whenever it indicates that it is, as long as under its own rules it retains the capacity to transact Senate business.\u00a0 Because the recess appointments to the NLRB occurred during pro forma sessions of the Senate when the Senate retained the capacity to transact Senate business and because the three-day break during which time the President made the three recess appointments was insufficient to count as a recess, the Court unanimously decided (with a concurrence by Justice Scalia joined by three other Justices) that the recess appointments to the NLRB were invalid.<\/p>\n

Now, I am not going to pretend to be a constitutional law expert for the simple reason that I am not.\u00a0 However, I can explain what impact this decision will have on the multitude of decisions that the Board made from January 2012 through August 2013.\u00a0 First, this type of situation where cases have to be potentially re-decided is not without precedent.\u00a0 In New Process Steel v. NLRB<\/em>, 130 S. Ct. 2635 (2010), the Court found invalid two-Board-member decisions on grounds that the Board lacked a three-person quorum under Section 3(b) of the National Labor Relations Act (the Board\u2019s full complement is five members \u2013 three from the President\u2019s party and two from the other party).\u00a0 As a result, the Board had to re-decide and re-issue those cases decided by that two-member Board. \u00a0Those New Process<\/em> Steel <\/em>decisions were, however, much less controversial than the decisions voided by Noel Canning<\/em> because they involved decisions made by a two-member Board, one Democrat and one Republican, and thus were straight-forward decisions that did not break new ground.<\/p>\n

According to NLRB General Counsel, Richard Griffin, 98 cases were related to the Board recess appointments pending in federal appellate courts when Noel Canning <\/em>was decided. The Board has already set aside its decisions in more than 40 of those cases and has asked federal courts to remand dozens of other cases to the Board for appropriate action.\u00a0 Noel Canning<\/em> also impacted Board decisions that did not move to the circuit court level.\u00a0 General Counsel Griffin has said that the parties likely will not have an interest in coming back to the board about a ruling that was satisfactory or a dispute that was resolved.\u00a0 On the other hand, if parties want to return to the NLRB, then Griffin may find it appropriate to bring cases back to the board for confirmation of earlier decisions if they involve unresolved issues about compliance with the NLRA or possible contempt of court.\u00a0 Finally, Griffin has acknowledged that decisions issued by the Board when it lacked a quorum of properly appointed members cannot be considered to have precedential value, but the current Board may find such rulings persuasive and may still follow their reasoning.\u00a0 In short, much aftermath at the Board in light of Noel Canning<\/em> and much still to be decided.<\/p>\n

As for Harris v. Quinn<\/a><\/em>, 134 S. Ct. 2618 (June 30, 2014), the case concerned whether objecting home healthcare workers in Illinois could be required to pay union dues (an \u201cagency fee\u201d) under a union security clause.\u00a0 These home health care workers were considered public employees of the state of Illinois even though they worked in private homes.\u00a0\u00a0 A \u201cunion security clause\u201d is a provision in a labor contract that requires members of a union bargaining unit to pay at least some dues to the union representing them as a condition of employment.\u00a0 Under the Supreme Court\u2019s decision in Abood v. Detroit Board of Education, <\/em>431 U.S. 209 (1977), public-sector workers have a First Amendment right not to be compelled (as a condition of employment) to fund political speech with which they disagree.\u00a0 Thus, union security clauses can only require dues payments for \u201ccollective-bargaining activities\u201d but not for \u201cideological activities unrelated to collective bargaining.\u201d<\/p>\n

In a 5-4 decision, the Court held that the union security agreement that applied to these home healthcare workers violated their First Amendment rights.\u00a0 Justice Alito, writing for the majority, questioned Abood\u2019s<\/em> continuing viability on several grounds, but in the end chose to distinguish it rather than overturn it.\u00a0 Abood<\/em> did not cover the employees here, the majority reasoned, because they were not \u201cfull-fledged public employees\u201d but rather \u201cpartial public employees,\u201d as they were almost entirely answerable to private customers.\u00a0 Further, they did not enjoy most of the rights other state employees have.\u00a0 In dissent, Justice Kagan defended Abood<\/em> and argued that it covered the employees here.\u00a0 This case indicates that while at least some justices would prefer to overrule Abood<\/em>, there are not five votes to do so, at least not currently.\u00a0 It would not surprise me if further test cases are filed by public sector workers covered by union security clauses who wish to see Abood <\/em>overruled.\u00a0 In the meantime, union security clauses (at least in non-right-to-work states) remain viable for both private-sector and public-sector employees.<\/p>\n

 <\/p>\n","protected":false},"excerpt":{"rendered":"

(This is another post in our series, Looking Back at the U.S. Supreme Court’s 2013 Term.) Last month I commenced a series of posts of the United States Supreme Court\u2019s labor and employment law decisions last term by blogging on the Court\u2019s decision in the First Amendment public employee free speech case of Lane v. […]<\/p>\n","protected":false},"author":5,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"ocean_post_layout":"","ocean_both_sidebars_style":"","ocean_both_sidebars_content_width":0,"ocean_both_sidebars_sidebars_width":0,"ocean_sidebar":"","ocean_second_sidebar":"","ocean_disable_margins":"enable","ocean_add_body_class":"","ocean_shortcode_before_top_bar":"","ocean_shortcode_after_top_bar":"","ocean_shortcode_before_header":"","ocean_shortcode_after_header":"","ocean_has_shortcode":"","ocean_shortcode_after_title":"","ocean_shortcode_before_footer_widgets":"","ocean_shortcode_after_footer_widgets":"","ocean_shortcode_before_footer_bottom":"","ocean_shortcode_after_footer_bottom":"","ocean_display_top_bar":"default","ocean_display_header":"default","ocean_header_style":"","ocean_center_header_left_menu":"","ocean_custom_header_template":"","ocean_custom_logo":0,"ocean_custom_retina_logo":0,"ocean_custom_logo_max_width":0,"ocean_custom_logo_tablet_max_width":0,"ocean_custom_logo_mobile_max_width":0,"ocean_custom_logo_max_height":0,"ocean_custom_logo_tablet_max_height":0,"ocean_custom_logo_mobile_max_height":0,"ocean_header_custom_menu":"","ocean_menu_typo_font_family":"","ocean_menu_typo_font_subset":"","ocean_menu_typo_font_size":0,"ocean_menu_typo_font_size_tablet":0,"ocean_menu_typo_font_size_mobile":0,"ocean_menu_typo_font_size_unit":"px","ocean_menu_typo_font_weight":"","ocean_menu_typo_font_weight_tablet":"","ocean_menu_typo_font_weight_mobile":"","ocean_menu_typo_transform":"","ocean_menu_typo_transform_tablet":"","ocean_menu_typo_transform_mobile":"","ocean_menu_typo_line_height":0,"ocean_menu_typo_line_height_tablet":0,"ocean_menu_typo_line_height_mobile":0,"ocean_menu_typo_line_height_unit":"","ocean_menu_typo_spacing":0,"ocean_menu_typo_spacing_tablet":0,"ocean_menu_typo_spacing_mobile":0,"ocean_menu_typo_spacing_unit":"","ocean_menu_link_color":"","ocean_menu_link_color_hover":"","ocean_menu_link_color_active":"","ocean_menu_link_background":"","ocean_menu_link_hover_background":"","ocean_menu_link_active_background":"","ocean_menu_social_links_bg":"","ocean_menu_social_hover_links_bg":"","ocean_menu_social_links_color":"","ocean_menu_social_hover_links_color":"","ocean_disable_title":"default","ocean_disable_heading":"default","ocean_post_title":"","ocean_post_subheading":"","ocean_post_title_style":"","ocean_post_title_background_color":"","ocean_post_title_background":0,"ocean_post_title_bg_image_position":"","ocean_post_title_bg_image_attachment":"","ocean_post_title_bg_image_repeat":"","ocean_post_title_bg_image_size":"","ocean_post_title_height":0,"ocean_post_title_bg_overlay":0.5,"ocean_post_title_bg_overlay_color":"","ocean_disable_breadcrumbs":"default","ocean_breadcrumbs_color":"","ocean_breadcrumbs_separator_color":"","ocean_breadcrumbs_links_color":"","ocean_breadcrumbs_links_hover_color":"","ocean_display_footer_widgets":"default","ocean_display_footer_bottom":"default","ocean_custom_footer_template":"","ocean_post_oembed":"","ocean_post_self_hosted_media":"","ocean_post_video_embed":"","ocean_link_format":"","ocean_link_format_target":"self","ocean_quote_format":"","ocean_quote_format_link":"post","ocean_gallery_link_images":"on","ocean_gallery_id":[],"footnotes":""},"categories":[33,122,24],"tags":[],"class_list":["post-23133","post","type-post","status-publish","format-standard","hentry","category-labor-employment-law","category-public","category-us-supreme-court","entry"],"_links":{"self":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/23133","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/users\/5"}],"replies":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/comments?post=23133"}],"version-history":[{"count":0,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/23133\/revisions"}],"wp:attachment":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/media?parent=23133"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/categories?post=23133"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/tags?post=23133"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}