[House Report 113-30]
[From the U.S. Government Publishing Office]
113th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 113-30
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PREVENTING GREATER UNCERTAINTY IN LABOR-MANAGEMENT RELATIONS ACT
_______
April 9, 2013.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Kline, from the Committee on Education and the Workforce, submitted
the following
R E P O R T
together with
MINORITY VIEWS
[To accompany H.R. 1120]
[Including cost estimate of the Congressional Budget Office]
The Committee on Education and the Workforce, to whom was
referred the bill (H.R. 1120) to prohibit the National Labor
Relations Board from taking any action that requires a quorum
of the members of the Board until such time as Board
constituting a quorum shall have been confirmed by the Senate,
the Supreme Court issues a decision on the constitutionality of
the appointments to the Board made in January 2012, or the
adjournment sine die of the first session of the 113th
Congress, having considered the same, report favorably thereon
with an amendment and recommend that the bill as amended do
pass.
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Preventing Greater Uncertainty in
Labor-Management Relations Act''.
SEC. 2. ACTIVITIES BY THE NATIONAL LABOR RELATIONS BOARD PROHIBITED.
Effective on the date of enactment of this Act, the National Labor
Relations Board shall cease all activity that requires a quorum of the
members of the Board, as set forth in the National Labor Relations Act
(29 U.S.C. 151 et seq.). The Board shall not appoint any personnel nor
implement, administer, or enforce any decision, rule, vote, or other
action decided, undertaken, adopted, issued, or finalized on or after
January 4, 2012, that requires a quorum of the members of the Board, as
set forth in such Act.
SEC. 3. TERMINATION.
The provisions of this Act shall terminate on the date on which--
(1) all members of the National Labor Relations Board are
confirmed with the advice and consent of the Senate, in
accordance with clause 2 of section 2 of article II of the
Constitution, in a number sufficient to constitute a quorum, as
set forth in the National Labor Relations Act (29 U.S.C. 151 et
seq.);
(2) the Supreme Court issues a decision on the
constitutionality of the appointments to the Board made in
January 2012; or
(3) the adjournment sine die of the first session of the
113th Congress.
SEC. 4. EFFECT OF CERTAIN BOARD ACTIONS.
In the event that this Act terminates pursuant to paragraphs (1) or
(3) of section 3, no appointment, decision, rule, vote, or other action
decided, undertaken, adopted, issued, or finalized by the Board on or
after January 4, 2012, that requires authorization by not less than a
quorum of the members of the Board, as set forth in the National Labor
Relations Act, may be implemented, administered, or enforced unless and
until it is considered and acted upon by a Board constituting a quorum,
as set forth in the National Labor Relations Act, or the Supreme Court
issues a decision on the constitutionality of the appointments to the
Board made in January 2012.
H.R. 1120, PREVENTING GREATER UNCERTAINTY IN LABOR-MANAGEMENT RELATIONS
ACT, COMMITTEE REPORT
PURPOSE
On January 4, 2012, President Obama made three
unprecedented recess appointments to the National Labor
Relations Board (NLRB) while the Senate was regularly meeting
in pro forma session. On January 25, 2013, the U.S. Court of
Appeals for the District of Columbia held unanimously that
President Obama's appointments were constitutionally invalid.
H.R. 1120, the Preventing Greater Uncertainty in Labor-
Management Relations Act, narrowly seeks to prevent additional
legal and economic uncertainty by prohibiting the NLRB from
enforcing any action taken since January 4, 2012, or taking any
further action, for which a Board quorum is required, until
issues surrounding the current Board quorum are resolved.
COMMITTEE ACTION
Full committee hearing examining President Obama's January 2012
appointments to the NLRB
On February 7, 2012, the Committee on Education and the
Workforce held a hearing entitled, ``The NLRB Recess
Appointments: Implications for America's Workers and
Employers.'' Witnesses discussed the constitutionality and
substantive consequences of President Obama's January 2012
appointments to the NLRB while the Senate was regularly meeting
in pro forma session. Witnesses before the panel included Mr.
Charles J. Cooper, Chairman, Cooper & Kirk, PLLC, Washington,
D.C.; Mr. Dennis M. Devaney, Member, Devaney, Jacob, Wilson,
PLLC, Troy, Michigan; Mr. Stefan J. Marculewicz, Shareholder,
Littler Mendelson P.C., Washington, D.C.; and Susan Davis,
Partner, Cohen, Weiss and Simon LLP, New York, New York.
Joint subcommittee hearing discussing three pending controversial NLRA
issues affecting higher education
On September 12, 2012, the Subcommittee on Health,
Employment, Labor, and Pensions held a hearing entitled,
``Expanding the Power of Big Labor: The NLRB's Growing
Intrusion into Higher Education.'' Witnesses debated whether
university graduate student assistants are statutory employees
under the National Labor Relations Act (NLRA); whether
university faculty are employees covered by the NLRA or
excluded managers; and what the appropriate test is to
determine whether a university is a religious institution
exempt from NLRA coverage. Witnesses before the panel included
Mr. Peter Weber, Dean, Brown University Graduate School,
Providence, Rhode Island; Mr. Michael Moreland, Vice Dean and
Professor of Law, Villanova University School of Law,
Villanova, Pennsylvania; Mr. Walter Hunter, Shareholder,
Littler Mendelson P.C., Providence, Rhode Island; and Mr.
Christian Sweeney, Deputy Organizing Director, American
Federation of Labor--Congress of Industrial Organizations,
Washington, D.C.
Subcommittee hearing analyzing the implications of the Noel Canning v.
NLRB decision
On February 13, 2013, the Subcommittee on Health,
Employment, Labor, and Pensions held a hearing entitled, ``The
Future of the NLRB: What Noel Canning v. NLRB Means for
Workers, Employers, and Unions.'' Witnesses discussed recent
controversial and precedent-changing NLRB holdings and the
implications of the U.S. Court of Appeals for the District of
Columbia's holding in Noel Canning v. NLRB. Witnesses before
the panel included Mr. G. Roger King, Of Counsel, Jones Day,
Columbus, Ohio; Mr. Raymond J. LaJeunesse, Jr., Vice President
and Legal Director of the National Right to Work Legal Defense
Foundation, Springfield, Virginia; Mr. Lawrence Z. Lorber,
Partner, Proskauer, Washington, D.C.; and Ms. Elizabeth
Reynolds, Shareholder, Allison, Slutsky & Kennedy P.C.,
Chicago, Illinois.
Legislation introduced
On March 13, 2013, Congressman Phil Roe introduced H.R.
1120, the Preventing Greater Uncertainty in Labor-Management
Relations Act, with 12 cosponsors. Any Board order may be
appealed to the U.S. Court of Appeals for the District of
Columbia, and the Board does not maintain a constitutional
quorum in that court. Therefore, no worker, union, or employer
can have confidence in any order issued by the Board. This
legislation was necessary to stop the Board from continuing to
issue decisions or take other actions that could increase legal
and economic uncertainty.
Committee passes H.R. 1120, the Preventing Greater Uncertainty in
Labor-Management Relations Act
On March 20, 2013, the Committee on Education and the
Workforce considered H.R. 1120, the Preventing Greater
Uncertainty in Labor-Management Relations Act. Congressman Roe
offered an amendment in the nature of a substitute, clarifying
that the Board may not appoint any individuals whose
appointments require a quorum of the Board. Two additional
amendments were offered; however, neither was adopted. The
committee favorably reported H.R. 1120, as amended, to the
House of Representatives by a vote of 23-15.
SUMMARY
The Preventing Greater Uncertainty in Labor-Management
Relations Act addresses the legal and economic uncertainty
caused by the Board's continued operation by prohibiting the
NLRB from enforcing any action taken since January 4, 2012, or
taking any further action, for which a Board quorum is
required, until the issues with the current Board quorum are
resolved.
COMMITTEE VIEWS
The NLRA, signed into law in 1935, guarantees the right of
most private-sector employees\1\ to organize and bargain
collectively with employers through representatives of their
choosing, and to refrain from any and all such activities. The
NLRB, an independent federal agency, was created by the NLRA to
fulfill two principal functions: 1) determine whether employees
wish to be represented by a union; and 2) prevent and remedy
employer and union unlawful acts (called unfair labor practices
or ULPs).
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\1\The NLRA does not cover all employees and employers in the
United States. For example, public sector employers (state, local, and
federal employees), employers covered by the Railway Labor Act
(airlines and railroads), agricultural labor, and supervisors are not
covered by the act. 29 U.S.C. 152(2).
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The NLRB has two components: the Board and the General
Counsel. The Board is a quasi-judicial five member body,
traditionally consisting of three individuals from the
president's party and two from the opposing party, appointed by
the president and confirmed by the Senate to staggered five-
year terms. The Board decides cases under the NLRA based on
formal records in administrative proceedings (subject to review
in the U.S. Court of Appeals), conducts secret ballot elections
to determine whether employees want to be represented by a
union, and promulgates rules to carry out the provisions of the
NLRA. A Board quorum consisting of three members is required
for the Board to issue decisions, promulgate regulations, and
appoint regional directors. NLRB regional functions, including
the acceptance and processing of representation petitions,
certification of representational elections, and issuance of
unfair labor practice complaints, are unaffected by a lack of a
Board quorum.
On January 4, 2012, relying on a new legal opinion by the
Justice Department, President Obama made three unprecedented
recess appointments to the NLRB (Democrats Sharon Block and
Richard Griffin, and Republican Terence Flynn) while the Senate
was breaking up a long recess with periodic pro forma sessions.
Since January 4, 2012, the Board has issued approximately 600
decisions. Many of these decisions are highly controversial and
have in some cases reversed precedent. Among other things, the
Board created new bargaining requirements before an employer
can enforce discretionary discipline, reversed longstanding
dues-checkoff rules, expanded the scope of concerted activity,
virtually eliminated employee ``Beck'' rights related to
lobbying expenses, and rewrote rules governing witness
statements taken during an employer investigation.
On January 25, 2013, in Noel Canning v. NLRB (Noel
Canning), the U.S. Court of Appeals for the District of
Columbia unanimously held that because the appointments of
Members Block and Griffin were constitutionally invalid the
Board lacked a quorum to issue decisions. As a result of the
Noel Canning decision, every action taken by the Board that
relied on intrasession recess\2\ appointments to constitute a
Board quorum is now in question. Employers, employees, and
unions are in legal limbo, struggling with uncertainty as to
the enforceability of Board orders--injecting greater
uncertainty in a struggling economy.
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\2\An intrasession recess refers to a recess of the Senate during a
session of the Senate. An intersession recess occurs when Congress
adjourns either between the first and second session of a Congress or
at the end of a Congress.
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To prevent additional legal and economic uncertainty caused
by President Obama's unprecedented appointments to the NLRB,
the Preventing Greater Uncertainty in Labor-Management
Relations Act prohibits the NLRB from enforcing any action
taken since January 4, 2012, or taking any further action, for
which a Board quorum is required, until issues surrounding the
current Board quorum are resolved.
History of Recess Appointments
Article II, section 2, clause 2 of the U.S. Constitution,
the Appointments Clause, gives the president the ``Power, by
and with the Advice and Consent of the Senate'' to appoint
officers of the United States. This is ``the general mode of
appointing officers of the United States . . . confined to the
President and Senate jointly.''\3\
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\3\Hamilton, Alexander, The Federalist Papers No. 67 (March 11,
1788).
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The Recess Appointment Clause, article II, section 2,
clause 3 of the U.S. Constitution, establishes an ``auxiliary
method of appointment,''\4\ authorizing the president ``to fill
up all Vacancies that may happen during the Recess of the
Senate.'' This ``auxiliary method of appointment'' was created
because ``it would have been improper to oblige [the Senate] to
be continually in session for the appointment of officers and
as vacancies might happen in their recess, which it might be
necessary for the public service to fill without delay.''\5\
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\4\Id.
\5\Id.
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The earliest disagreements as to limits of the Recess
Appointment Clause focused on the interpretation of the term
``happen.'' Originally it was understood that the president
could only make recess appointments to vacancies that occurred
during the recess.\6\ In 1792, Edmund Randolph, the first
Attorney General, examined whether a newly created position
could be filled by a recess appointment.\7\ The statute
establishing the new position was enacted in April 1792, while
the Senate was in session, however, when the Senate recessed in
May there was no nomination.\8\ Attorney General Randolph
concluded that the vacancy happened on the day the office was
created; therefore, it could not be filled with a recess
appointment.\9\ Alexander Hamilton, then a Major General in the
United State Army, agreed with Attorney General Randolph's
interpretation, stating in a similar situation that ``It is
clear . . . the President cannot fill a vacancy which happens
during a session of the Senate.''\10\ Additionally, there is
evidence President George Washington and Congress agreed with
this interpretation.\11\
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\6\Rappaport, Michael B., The Original Meaning of the Recess
Appointments Clause, 52 UCLA L. Rev. 1487, 1518 (2005).
\7\Id. at 1518-9, describing Edmund Randolph, Opinion on Recess
Appointments (July 7, 1792), in 24 The Papers of Thomas Jefferson, at
165-67 (John Catanzariti et al. ed., 1990).
\8\Id.
\9\Id.
\10\Id. at 1520, quoting Letter from Alexander Hamilton to James
McHenry, at 94.
\11\See Rappaport, Michael B., The Original Meaning of the Recess
Appointments Clause, 52 UCLA L. Rev. 1487, 1518 (2005).
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It was not until 1823 that the current, broader view
regarding recess appointments was adopted. To ensure that late
session vacancies could be filled,\12\ Attorney General William
Wirt adopted the ``may happen to exist'' interpretation.\13\ In
other words, the president may recess appoint to any vacancy
that is open during a recess regardless of when the vacancy
arose.
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\12\Id. at 1511.
\13\1 Op. Att'y Gen 631 (1823). See also Rappaport, Michael B., The
Original Meaning of the Recess Appointments Clause, 52 UCLA L. Rev.
1487, 1511 (2005).
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For the eighteenth and most of the nineteenth century,
``the recess'' referred to intersession recesses, those
occurring between sessions of Congress.\14\ For the first 75
years under the Constitution, there were no intrasession recess
appointments, those occurring during a single session.\15\ In
1867 the first intrasession recess appointment was made by
President Andrew Johnson.\16\ However, in 1901, Attorney
General Philander Knox, in the first written opinion on the
meaning of ``the recess,'' concluded that intrasession recess
appointments were unconstitutional.\17\ In Attorney General
Knox's opinion ``the recess'' referred only to intersession
recesses.\18\
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\14\Rappaport, Michael B., The Original Meaning of the Recess
Appointments Clause, 52 UCLA L. Rev. 1487, 1572 (2005).
\15\Id.
\16\Id.
\17\23 Op. Att'y Gen. 599 (1901). See also Rappaport, Michael B.,
The Original Meaning of the Recess Appointments Clause, 52 UCLA L. Rev.
1487, 1573 (2005).
\18\Id.
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Twenty years later, Attorney General Harry Daugherty broke
with precedent and adopted a practical interpretation of the
recess appointment clause.\19\ According to Attorney General
Daugherty, subsequent Attorney Generals, and the Department of
Justice's Office of Legal Counsel (OLC), the ``constitutional
test for whether a recess appointment is permissible is whether
the adjournment of the Senate is of such duration that the
Senate could `not receive communications from the President or
participate as a body in making appointments.'''\20\ While the
exact duration allowing for recess appointments is unclear,
from January 1981 to December 2011, ``the shortest intersession
recess during which a President made a recess appointment was
11 days, and the shortest intrasession recess during which a
President made a recess appointment was 10 days.''\21\ The U.S.
Supreme Court has not ruled on the meaning of the Recess
Appointment Clause; however, U.S. Courts of Appeals are split
as to the constitutionality of intrasession recess
appointments.\22\
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\19\Rappaport, Michael B., The Original Meaning of the Recess
Appointments Clause, 52 UCLA L. Rev. 1487, 1573 (2005).
\20\13 Op. O.L.C. 271, 272 (quoting 33 Op. Att'y Gen. 20, 24
(1921)).
\21\Hogue, Henry B., Recess Appointments: Frequently Asked
Questions, Congressional Research Service, 10 (January 9, 2012).
\22\See Stephens v. Evans, 387 F.3d 1220 (11th Cir. 2004), United
States v. Woodley, 751 F.2d 1008 (9th Cir. 1985), United States v.
Allocco, 305 F.2d 704 (2d Cir. 1962), and Noel Canning v. NLRB, No. 12-
1115, slip. Op. (D.C. Cir 2013).
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The practical interpretation of the recess appointment
clause led to the modern Senate practice of breaking up long
recesses with pro forma sessions. To ensure President George W.
Bush could not make recess appointments, beginning in 2007,
pursuant to article I, section 5, clause 2 of the U.S.
Constitution, which states the Senate is vested with the power
to ``determine the Rules of its Proceedings,'' the Senate began
breaking up long recesses with pro forma sessions.\23\ In
November 2007 the Senate Majority Leader, Senator Harry Reid,
explicitly stated the Senate would ``be coming in for pro forma
sessions during the Thanksgiving holiday to prevent recess
appointments.''\24\ During the final 14 months of the Bush
administration in which the Senate broke up recesses with pro
forma sessions, President Bush made no recess appointments.\25\
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\23\Hogue, Henry B., Recess Appointments: Frequently Asked
Questions, Congressional Research Service, 10 (January 9, 2012).
\24\Sen. Harry Reid, ``Recess Appointments,'' remarks in the
Senate, Congressional Record, daily edition, vol. 153 (November 16,
2007), p. S14609.
\25\Hogue, Henry B., Recess Appointments: Frequently Asked
Questions, Congressional Research Service, 10 (January 9, 2012).
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Similar actions were taken by the House of Representatives
to ensure President Obama could not make recess appointments
during the 112th Congress. Pursuant to article I, section 5,
clause 4 of the U.S. Constitution,\26\ the House refused to
pass any resolution to allow the Senate to recess or adjourn
for more than three days.\27\ From May 2011 to January 2012, no
concurrent resolution was introduced in either the House or the
Senate. The Senate was forced to use pro forma sessions to
break up recesses lasting longer than three days.\28\
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\26\Article 1, section 5, clause 4 of the U.S. Constitution states
that ``[n]either House, during the Sessions of Congress, shall, without
the Consent of the other, adjourn for more than three days.''
\27\Hogue, Henry B., Recess Appointments: Frequently Asked
Questions, Congressional Research Service, 10 (2012).
\28\Id.
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President Obama's Unprecedented January 2012 Recess Appointments
No president had exercised the recess appointment power
while the Senate was breaking up a long recess with periodic
pro forma sessions until, relying on a new OLC legal opinion,
President Obama made three recess appointments, two Democrats
and a Republican, to the NLRB on January 4, 2012. The legal
opinion, dated January 6, 2012, stated that the president ``has
authority under the Recess Appointment Clause . . . to make
recess appointments during the period between January 3 and
January 23 notwithstanding the convening of periodic pro forma
sessions.''\29\ According to the OLC, the Senate could stop
recess appointments only ``by remaining continuously in session
and being available to receive and act on nominations.''\30\
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\29\Memorandum Opinion for the Counsel to the President at 1, from
Virginia A. Seitz, Assistant Attorney General, Office of Legal Counsel,
Re: Lawfulness of Recess Appointments During a Recess of the Senate
Notwithstanding Periodic Pro Forma Sessions, at 1 (January 6, 2012).
\30\Id.
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Despite the fact that the Senate, days before the
appointments, passed the Temporary Payroll Tax Cut Continuation
Act of 2011 and gaveled in the 112th Congress by unanimous
consent\31\ during a pro forma session, in the opinion of the
OLC pro forma sessions ``do not interrupt the intrasession
recess in a manner that would preclude the President from
determining that the Senate remains unavailable throughout to
receive communications from the President or participate as a
body in making appointments.'''\32\ The OLC avoided the issue
as to the number of days needed to constitute a recess by
finding that a pro forma session did not break up a recess.\33\
However, even the OLC admitted the question as to whether the
president may make recess appointments during a recess broken
up by pro forma sessions is a ``novel one, and the substantial
arguments on each side create some litigation risk for such
appointments.''\34\
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\31\``Most nominations are brought up by unanimous consent and
approved without objection.'' Rybicki, Elizabeth, Senate Consideration
of Presidential Nominations, Committee and Floor Procedure,
Congressional Research Service, 9 (2011).
\32\Memorandum Opinion for the Counsel to the President at 1, from
Virginia A. Seitz, Assistant Attorney General, Office of Legal Counsel,
Re: Lawfulness of Recess Appointments During a Recess of the Senate
Notwithstanding Periodic Pro Forma Sessions, at 1 (January 6, 2012),
quoting Executive Power--Recess Appointments, 33 Op. Att'y Gen. 20, 24
(1921).
\33\Id. at 13.
\34\Id. at 4.
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The constitutionality of the recess appointments and
validity of the OLC opinion were immediately questioned by
constitutional scholars. Edwin Meese, the 75th attorney general
of the United States, and Todd Gaziano, a former OLC employee,
wrote the appointments are nothing ``more than an
unconstitutional attempt to circumvent the Senate's advise-and-
consent role . . . It is a breathtaking violation of the
separation of powers and the duty of comity that the executive
owes to Congress.''\35\
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\35\Meese, Edwin, and Todd Gaziano, Obama's Recess Appointments are
Unconstitutional, The Heritage Foundation (January 5, 2012).
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In testimony before the Education and the Workforce
Committee, Charles Cooper, former Assistant Attorney General of
the OLC, stated not only that the OLC's opinion was wrong, it
``would allow [the recess appointment power] to swallow the
Senate's authority to withhold its consent when it believes a
nominee should not be confirmed.''\36\
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\36\The NLRB Recess Appointments: Implications for America's
Workers and Employers, Hearing before the Education and the Workforce
Committee, 112th Cong., 2nd Sess. at 9 (2012) (written testimony of
Charles Cooper) [hereinafter Cooper Testimony].
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Within days of President Obama's unprecedented recess
appointments, interested parties challenged the
constitutionality of the January 2012 recess appointments. On
January 25, 2013, in Noel Canning, the U.S. Court of Appeals
for the District of Columbia unanimously held that the
appointments of Members Block and Griffin to the NLRB were
constitutionally invalid. Cases are still pending in the
Second, Third, Fourth, Fifth, Seventh, Ninth, and Eleventh
circuit U.S. Court of Appeals.\37\
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\37\Recess Appointments Litigation Resource Page, National Chamber
Litigation Center, available at http://www.chamberlitigation.com/
recess-appointments-litigation-resource-page (last visited on March 26,
2013).
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Noel Canning v. NLRB
On February 24, 2012, Noel Canning, a division of Noel
Corporation, filed a petition for review and to set aside a
NLRB order in the U.S. Court of Appeals for the District of
Columbia.\38\ Noel Canning argued the January 2012 recess
appointments to the NLRB were unconstitutional, therefore,
``the Board lacked authority to act for want of a quorum.''\39\
The U.S. Chamber of Commerce and the Coalition for a Democratic
Workplace intervened in support of the employer. Republican
Senators and Speaker John Boehner filed amicus briefs in the
case, arguing the appointments were unconstitutional.
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\38\Noel Canning v. NLRB, No. 12-1115, slip. Op., 3 (D.C. Cir
2013).
\39\Id. at 3.
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On January 25, 2013 the U.S. Court of Appeals for the
District of Columbia held unanimously in Noel Canning that the
January 2012 recess appointments to the NLRB were
constitutionally invalid.\40\ Relying on the Constitution's
natural meaning as it would be understood at the time of its
ratification, the court held that ``the Recess'' (emphasis
added) refers to intersession recesses, ``the period between
sessions when the Senate is by definition not in session and
therefore unavailable to receive and act upon nominations from
the President.''\41\ It rejected the administration's argument
that ``Recess'' referred to any recess, stating that the
Constitution would read ``a recess'' (emphasis added) if it was
meant to include any recess.\42\ Two of the three judges went
further, stating that the vacancy must happen during ``the
Recess'' for the president to exercise the Recess Appointments
Clause.\43\
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\40\Id. at 30.
\41\Id. at 17, 30.
\42\Id. at 17.
\43\Id. at 44.
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NLRB Acting General Counsel Lafe Solomon called the Noel
Canning decision ``profound, enormous, significant'' and
Chairman Pearce acknowledged it ``has a sweeping
potential.''\44\ Despite recognizing its significance, on the
day Noel Canning was decided NLRB Chairman Pearce chose to
ignore the Board's responsibility to foster certainty and
predictability for employees, unions, and employers. Instead,
he made clear that the Board will continue to function despite
questions as to the constitutionality of two of the three Board
members. He stated, in part, ``the Board respectfully disagrees
with [the Court's] decision and believes the president's
position in the matter will ultimately be upheld.''\45\ The
statement closed with ``the Board''. . . will continue to
perform our statutory duties and issue decisions.''\46\
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\44\Dube, Lawrence E., NLRB Officials Describe Efforts to Stay
Ahead of Noel Canning and Looming Sequestration, Daily Labor Report
(February 27, 2013).
\45\Statement by Chairman Pearce on recess appointment ruling, NLRB
(January 25, 2013), available at http://www.nlrb.gov/news/statement-
chairman-pearce-recess-appointment-ruling.
\46\Id.
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Labor Relations Uncertainty: The Need for Legislation
The U.S. Court of Appeals for the District of Columbia's
holding in Noel Canning has far-reaching implications on the
validity of all intrasession recess appointments that must
ultimately be settled by the Supreme Court. In the meantime, it
is being used as controlling authority to invalidate decisions
issued by the current Board. Only three things are certain:
decisions issued by the current Board cannot be relied upon,
every losing party will be justified in filing an appeal, and
no prevailing party can be assured they will ever benefit from
a Board-ordered remedy. The Board's continued operation will
only perpetuate confusion and completely frustrate labor
relations stability. This uncertainty is not what the NLRA
anticipated and cannot be permitted.
Under the NLRA, ``any person aggrieved by a final order of
the Board . . . may obtain a review of such order in any United
States court of appeals in the circuit wherein the unfair labor
practice in question was alleged to have been engaged in or . .
. in the United State Court of Appeals for the District of
Columbia [emphasis added].''\47\ In other words, unlike other
courts of appeals, aggrieved parties can always appeal a Board
order to the U.S. Court of Appeals for the District of
Columbia.
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\47\29 U.S.C. 160(f).
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In the U.S. Court of Appeals for the District of Columbia,
the holding in Noel Canning is controlling and the Board is
afforded no deference on constitutional issues.\48\ The U.S.
Court of Appeals for the District of Columbia is ``bound to
follow circuit precedent until it is either overruled by an en
banc court or the [U.S.] Supreme Court.''\49\ When applying the
NLRA, ``a Board rule is entitled to considerable deference so
long as it is rational and consistent with the Act, even if it
represents a departure from the Board's prior policy.''\50\ No
such deference is accorded the Board on constitutional issues.
Accordingly, all prior and future orders issued by a Board that
relied on intrasession appointments to constitute a quorum
could be overturned on constitutional grounds regardless of the
decisions' merit. Additionally, former Board Member Dennis
Devaney, testifying before the Education and the Workforce
Committee, highlighted the fact that as regional staff will
apply the most recent decisions, ``the effect of the decisions
will not be limited to the aggrieved party . . . the decisions
will extend to all parties covered by the NLRA.''\51\
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\48\Maxwell v. Snow, 409 F.3d 354, 358 (D.C. Cir. 2005). See also
Brewster v. Commissioner, 607 F.2d 1369, 1373 (D.C. Cir. 1979).
\49\Id.
\50\NLRB v. Curtin Matheson Scientific, Inc., 494 U.S. 775, 775
(1990).
\51\The NLRB Recess Appointments: Implications for America's
Workers and Employers, Hearing before the Education and the Workforce
Committee, 112th Cong., 2nd Sess. at 3 (2012) (written testimony of
Dennis Devaney) [hereinafter Devaney Testimony].
---------------------------------------------------------------------------
Ultimately, employees, unions, and employers will be forced
to endure costly litigation to overturn the Board's orders and
taxpayer funds will be wasted in the defense of the Board's
orders. At a February 2012 Education and the Workforce
Committee hearing, Stefan Marculewicz, a management side
attorney with Littler Mendelson, P.C., testified regarding the
difficult situation in which employers find themselves:
Companies trying to comply with the law will face a
dilemma of whether to comply with decisions issued by
this Board or refuse to do so. For many, waging a
lengthy legal battle will prove too costly in time,
money and other resources to justify the expenditure.
Many employers will simply comply. However, if the law
created by this Board is ultimately annulled in the
courts, it will be very difficult indeed to pick up the
pieces.\52\
---------------------------------------------------------------------------
\52\The NLRB Recess Appointments: Implications for America's
Workers and Employers, Hearing before the Education and the Workforce
Committee, 112th Cong., 2nd Sess. at 3 (2012) (written testimony of
Stefan Marculewicz) [hereinafter Marculewicz Testimony].
While not a perfect analogy, the events surrounding New
Process Steel, L.P. v. NLRB (New Process Steel) provide some
idea of the instability caused by the Board's continued
operation. Over 27 months, starting in 2008, the NLRB issued
approximately 600 rulings in unfair labor practice and
representation cases with only two members.\53\ With one
Democrat member and one Republican member, the Board was
largely limited to areas of settled law. While the decisions
were largely noncontroversial, almost 100 appeals were filed
with the federal appeals courts challenging the two-member
Board's authority to issue decisions.\54\ On June 18, 2010 in
New Process Steel, the Supreme Court held that the NLRB must
maintain a membership of at least three members to constitute a
quorum.\55\ All decisions issued by the two-member Board were
overturned and nearly 100 cases were remanded from federal
court to the Board. For nearly two years, employers were forced
to comply with Board decisions that were ultimately overturned.
---------------------------------------------------------------------------
\53\New Process Steel v. NLRB, 130 S. Ct. 2635, 2639 (2010).
\54\Kaplan, Roger, Board Begins Review of Cases in Light of New
Process Steel Remands, Union & Labor Law Review (August 9, 2010),
available at http://www.efcablog.com/2010/08/articles/nlrb/board-
begins-review-of-cases-in-light-of-new-process-steel-remands/.
\55\New Process Steel v. NLRB, 130 S. Ct. at 2635.
---------------------------------------------------------------------------
As noted above, unlike the relatively benign decisions
overturned by New Process Steel, many of the Board decisions
issued over the past year are highly controversial and have in
some cases overturned longstanding Board precedent. In
testimony before the Education and the Workforce Committee,
Roger King, Of Counsel at the Jones Day law firm, stated that
``the current Board has exercised no restraint and indeed has
pursued an aggressive agenda of overturning decades of
precedent and greatly expanding the reach of the Act . . .
rais[ing] significant public policy issues regarding how our
nation's labor policy should be established and labor laws
should be enforced.''\56\ The enforceability of these and any
future decisions is in limbo. At least 38 cases, filed by
employers, unions, and employees, are being held in abeyance in
the U.S. Court of Appeals for the District of Columbia
alone.\57\ However, challenges to NLRB actions are not limited
to the federal court. The actions of NLRB regional directors
and NLRB administrative law judges are being challenged based
on Noel Canning.\58\
---------------------------------------------------------------------------
\56\The Future of the NLRB: What Noel Canning vs. NLRB Means for
Workers, Employers, and Unions, 113th Cong., 1st Sess. at 4 (2013)
(written testimony of G. Roger King) [hereinafter King Testimony].
\57\Recess Appointments Litigation Resource Page, National Chamber
Litigation Center, available at http://www.chamberlitigation.com/
recess-appointments-litigation-resource-page (last visited on March 26,
2013).
\58\Dude, Lawrence E., NLRB Officials Describe Efforts to Stay
Ahead of Noel Canning and Looming Sequestration, Daily Labor Report
(February 27, 2013).
---------------------------------------------------------------------------
As the U.S. Supreme Court has recognized, achieving labor
relations stability was the ``primary objective of Congress in
enacting the National Labor Relations Act.''\59\ The Board's
continued operation in the wake of Noel Canning will only
perpetuate confusion and completely frustrate the stability of
labor relations. Additionally, former Board Member Devaney
underscored that ``uncertainty created by questions about the
legality and authority of these appointments will further
contribute to doubts about the agency and its mission.''\60\
Board decisions govern virtually every private workplace across
the country, affecting the lives of millions of workers and
employers. Greater uncertainty will only exacerbate the jobs
crisis plaguing the nation. Given the significance of these
circumstances, the Education and the Workforce Committee was
compelled to consider and approve H.R. 1120, the Preventing
Greater Uncertainty in Labor-Management Relations Act.
---------------------------------------------------------------------------
\59\Colgate-Palmolive-Peet Co. v. NLRB, 338 U.S. 355, 362-3 (1949).
\60\Devaney Testimony at 3.
---------------------------------------------------------------------------
Conclusion
To prevent greater uncertainty in the struggling economy,
Congressman Roe introduced and the House Education and the
Workforce Committee passed H.R. 1120, the Preventing Greater
Uncertainty in Labor-Management Relations Act. The act
prohibits the NLRB from enforcing any action taken since
January 4, 2012, or taking any further action, for which a
Board quorum is required, until issues with the current Board
are resolved. While the administration has announced that it
will appeal the Noel Canning decision to the Supreme Court, to
date, no writ of certiorari has been filed.\61\ Additionally,
the president has apparently elected not to work cooperatively
with Democratic and Republican Senators to nominate and confirm
individuals to the NLRB, choosing instead to nominate the same
individuals--Sharon Block and Richard Griffin--whose previous
appointments spurred the current legal controversy. In the
meantime, the Board continues to take actions that are subject
to appeal in a court that does not recognize the Board quorum,
thus putting those actions--and the workers, employers, and
unions affected by them--in legal limbo. In short, the Board's
continued action is inconsistent with the National Labor
Relations Act. Moreover, it is destructive to the economy. The
Preventing Greater Uncertainty in Labor-Management Relations
Act is essential to force the Board to stop taking actions that
increase legal uncertainty and ultimately hurt the economy.
---------------------------------------------------------------------------
\61\NLRB To Seek Supreme Court Review in Noel Canning v. NLRB,
National Labor Relations Board (March 12, 2013), available at http://
nlrb.gov/news-outreach/news-releases/nlrb-seek-supreme-court-review-
noel-canning-v-nlrb (last visited on March 26, 2013).
---------------------------------------------------------------------------
SECTION-BY-SECTION ANALYSIS
Section 1. Provides that the short title is the
``Preventing Greater Uncertainty in Labor-Management Relations
Act.''
Section 2. Prevents the NLRB from engaging in any activity
requiring a quorum (3 members) of the Board and forbids the
NLRB from enforcing any action that required a Board quorum,
taken on or after January 4, 2012, until one of the
legislation's sunset provisions, found in section 3, is met.
Section 3. Provides three circumstances under which
restrictions on future actions of the Board are lifted: 1) all
members of the NLRB are confirmed by the U.S. Senate in a
number sufficient to constitute a quorum; 2) the U.S. Supreme
Court determines the constitutionality of the January 2012
recess appointments; or 3) the first session of the 113th
Congress adjourns (the date upon which the January 2012 recess
appointments end).
Section 4. Ensures that the Board does not enforce actions
that relied upon the January 2012 recess appointments to
constitute a quorum without review and approval by a
constitutionally appointed Board quorum or a decision on the
constitutionality of the January 2012 recess appointments from
the U.S. Supreme Court.
EXPLANATION OF AMENDMENTS
The amendments, including the amendment in the nature of a
substitute, are explained in the body of this report.
APPLICATION OF LAW TO THE LEGISLATIVE BRANCH
Section 102(b)(3) of Public Law 104-1 requires a
description of the application of this bill to the legislative
branch. H.R. 1120 prohibits the NLRB from enforcing any action
taken since January 4, 2012, or taking any further action, for
which a Board quorum is required, until issues surrounding the
current Board quorum are resolved.
UNFUNDED MANDATE STATEMENT
Section 423 of the Congressional Budget and Impoundment
Control Act (as amended by Section 101(a)(2) of the Unfunded
Mandates Reform Act, P.L. 104-4) requires a statement of
whether the provisions of the reported bill include unfunded
mandates. This issue is addressed in the CBO letter.
EARMARK STATEMENT
H.R. 1120 does not contain any congressional earmarks,
limited tax benefits, or limited tariff benefits as defined in
clause 9 of House Rule XXI.
ROLL CALL VOTES
Clause 3(b) of rule XIII of the Rules of the House of
Representatives requires the Committee Report to include for
each record vote on a motion to report the measure or matter
and on any amendments offered to the measure or matter the
total number of votes for and against and the names of the
Members voting for and against.
STATEMENT OF GENERAL PERFORMANCE GOALS AND OBJECTIVES
In accordance with clause (3)(c) of House Rule XIII, the
goal of H.R. 1120 is to prohibit the NLRB from enforcing any
action taken since January 4, 2012, or taking any further
action, for which a Board quorum is required, until issues
surrounding the current Board quorum are resolved. The
Committee expects the NLRB to comply with these provisions and
implement the changes to the law in accordance with these
stated goals.
DUPLICATION OF FEDERAL PROGRAMS
No provision of H.R. 1120 establishes or reauthorizes a
program of the Federal Government known to be duplicative of
another Federal program, a program that was included in any
report from the Government Accountability Office to Congress
pursuant to section 21 of Public Law 111-139, or a program
related to a program identified in the most recent Catalog of
Federal Domestic Assistance.
DISCLOSURE OF DIRECTED RULE MAKINGS
The committee estimates that enacting H.R. 1120 does not
specifically direct the completion of any specific rule makings
within the meaning of 5 U.S.C. 551.
STATEMENT OF OVERSIGHT FINDINGS AND RECOMMENDATIONS OF THE COMMITTEE
In compliance with clause 3(c)(1) of rule XIII and clause
2(b)(1) of rule X of the Rules of the House of Representatives,
the Committee's oversight findings and recommendations are
reflected in the body of this report.
NEW BUDGET AUTHORITY AND CBO COST ESTIMATE
With respect to the requirements of clause 3(c)(2) of rule
XIII of the Rules of the House of Representatives and section
308(a) of the Congressional Budget Act of 1974 and with respect
to requirements of clause 3(c)(3) of rule XIII of the Rules of
the House of Representatives and section 402 of the
Congressional Budget Act of 1974, the Committee has received
the following estimate for H.R. 1120 from the Director of the
Congressional Budget Office:
U.S. Congress,
Congressional Budget Office,
Washington, DC, March 21, 2013.
Hon. John Kline, Chairman,
Committee on Education and the Workforce,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 1120, the
Preventing Greater Uncertainty in Labor-Management Relations
Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Christina
Hawley Anthony.
Sincerely,
Douglas W. Elmendorf,
Director.
Enclosure.
H.R. 1120--Preventing Greater Uncertainty in Labor-Management Relations
Act
H.R. 1120 would prohibit the National Labor Relations Board
from undertaking activity that requires a quorum of the members
of the Board. Further, the bill would prohibit the Board from
implementing, administering, or enforcing any decisions
finalized on or after January 4, 2012. Those prohibitions would
terminate when either all members for the Board are confirmed
by the Senate in a number sufficient to constitute a quorum,
when the Supreme Court issues a decision as to the
constitutionality of the appointments made to the Board in
January 2012, or when the first session of the 113th Congress
adjourns sine die.
Enacting H.R. 1120 would not affect direct spending or
revenues; therefore, pay-as-you-go procedures do not apply.
H.R. 1120 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act.
The CBO staff contact for this estimate is Christina Hawley
Anthony. The estimate was approved by Peter H. Fontaine,
Assistant Director for Budget Analysis.
COMMITTEE COST ESTIMATE
Clause 3(d)(1) of rule XIII of the Rules of the House of
Representatives requires an estimate and a comparison of the
costs that would be incurred in carrying out H.R. 1120.
However, clause 3(d)(2)(B) of that rule provides that this
requirement does not apply when the Committee has included in
its report a timely submitted cost estimate of the bill
prepared by the Director of the Congressional Budget Office
under section 402 of the Congressional Budget Act.
MINORITY VIEWS
H.R. 1120, ``THE PREVENTING GREATER UNCERTAINTY IN LABOR-MANAGEMENT
RELATIONS ACT''
113TH CONGRESS, 1ST SESSION
APRIL 3, 2013
Committee Democrats oppose H.R. 1120. This legislation
requires the National Labor Relations Board (``NLRB'' or
``Board'') to cease all activity that requires a quorum of
Board members. H.R. 1120 shuts down the NLRB, rendering
critical rights and protections afforded workers and employers
under the National Labor Relations Act (``NLRA'')
unenforceable. A right without a remedy is no right at all.
This legislation allows a party to ignore election results. It
leaves workers, unions, and employers alike vulnerable to
unfair labor practices. By throwing yet another wrench into the
NLRB processes, it creates new uncertainty and instability in
labor-management relations and our economy generally.
Committee Republicans introduced H.R. 1120 and voted it out
of Committee in less than five legislative days. Not a single
hearing was held on the bill. There was no opportunity to
examine the implications of H.R. 1120, no objective assessments
by any experts, and no evaluation of the impact on the millions
of workers and employers who will be affected by this
legislation.
H.R. 1120 will be devastating to workers and employers. It
will frustrate workers' right to organize, shutting down
elections altogether or allowing an incumbent party to simply
ignore the election results or force ballots to go uncounted.
It promotes strikes as the only viable means of addressing
unfair labor practices. It makes it impossible for workers
illegally fired for exercising their NLRA rights to actually
get their jobs back in many regions. It makes it highly
unlikely that they will in other regions. It creates an
incentive for frivolous appeals and litigation. It enables
employers to unlawfully ship jobs overseas. During the
Committee mark-up, Democratic members questioned the impact
H.R. 1120 will have on these issues to no avail.
This legislation is also an attack on Presidential
appointment power. Presidents have recess appointed hundreds of
individuals to positions at various agencies and throughout the
federal courts. Contrary to Committee Republicans' politicized
view of President Obama's appointment of Sharon Block, Richard
Griffin, and Terrence Flynn, these appointments were within the
long standing interpretation of the President's Constitutional
Appointment power and necessary to keep a critical agency
functioning in the face of Republican obstructionism.
This Committee has important work to do to rebuild the
middle class. Instead of working to ensure Americans have good
jobs, protecting workers' pensions and retirement security,
raising the minimum wage, and dealing with issues of
discrimination in employment, Committee Republicans have
decided to continue to use Committee time and resources to
advance an anti-worker agenda. H.R. 1120 demonstrates that a
top priority for Committee Republicans is to rush politically
motivated legislation to the floor that eviscerates the rights
of workers to organize and collectively bargain.
HOUSE REPUBLICANS' UNPRECEDENTED ASSAULT ON THE NLRB
House Republicans have committed unprecedented resources to
attacking the NLRB. These attacks come at a telling time. In
2012, 7 million private sector workers belonged to a union,
while the number of unemployed workers remained above 12
million. Adding in the underemployed nets 25 million workers
looking for decent jobs. Yet, rather than working to help
create jobs or find people meaningful employment, House
Republicans' focus has been on attacking the small sliver of
the workforce that is not only employed but consistently earns
higher wages and benefits than its non-union counterparts. For
political and ideological reasons, attacking organizations that
secure jobs for workers with decent pay and benefits, or the
agency that administers and enforces the rights of these
workers, is a top priority of the House Republicans. This is
tragic, and its utter counterproductivity is one of the many
reasons why the American people view Congress so unfavorably.
Last Congress, one of the first legislative items House
Republicans considered included an amendment to shut down the
NLRB. Committee Republican Tom Price offered Amendment 410 to
H.R. 1, the fiscal year (FY) 2011 spending bill, to defund the
NLRB and shut it down completely.\1\ Representative Rosa
DeLauro (D-CT) characterized the amendment as ``a step backward
for democracy.''\2\ A majority of the Republican caucus voted
in favor of the amendment, including HELP Subcommittee Chairman
Roe, sponsor of H.R. 1120. Democrats unanimously opposed the
amendment, and it failed.\3\
---------------------------------------------------------------------------
\1\Available at http://www.thomas.gov/cgi-bin/bdquery/D?d112:54:./
temp/ bdy3W8::.
\2\Available at http://www.gpo.gov/fdsys/pkg/CREC-2011-02-16/pdf/
CREC-2011-02-16-pt1-PgH957-2.pdf#page=1 at H1031.
\3\Available at http://clerk.house.gov/evs/2011/roll075.xml.
---------------------------------------------------------------------------
Additional attacks on the NLRB include: a budget that would
have forced the Board to furlough all of its employees for much
of FY 2011, a bill to remove all prosecutorial and rulemaking
authority from the Board, and a bill that would abolish the
NLRB completely, shifting its current authority to other
agencies.\4\ The FY 2012 spending bill, H.R. 3070, included
various provisions aimed at defunding the NLRB's rulemaking and
enforcement authority. These include the:
---------------------------------------------------------------------------
\4\H.R. 2926, available at http://thomas.loc.gov/cgi-bin/query/
z?c112:H.R.2926.
---------------------------------------------------------------------------
LProhibition of funding used to develop,
implement, and enforce rules.
LProhibition on funding to enforce the NLRB's
Specialty Healthcare decision.
LProhibition on funding to enforce the NLRB's
Lamon's Gasket decision.
Republicans also included several riders to other FY 2012
House Appropriations bills.
LA rider to H.R. 2055 (Military Construction and
Veterans' Affairs spending measure) prohibiting funding for the
development, implementation, and enforcement of rules relating
to electronic voting in elections.
LA rider to H.R. 5326 (Commerce Justice and
Science spending measure) eliminating funding for the NLRB's
prosecutorial authority to litigate against states enacting
laws in violation of the NLRA.
Since gaining control of the House, Committee on Education
and the Workforce Republicans have held no fewer than nine
hearings attacking the NLRB.
1. Feb. 11, 2011: Emerging Trends at the National
Labor Relations Board\5\
---------------------------------------------------------------------------
\5\Available at http://edworkforce.house.gov/Calendar/
EventSingle.aspx?EventID=223394.
---------------------------------------------------------------------------
2. May 26, 2011: Corporate Campaigns and the NLRB: The
Impact of Union Pressure on Job Creation\6\
---------------------------------------------------------------------------
\6\Available at http://edworkforce.house.gov/Calendar/
EventSingle.aspx?EventID=242129.
---------------------------------------------------------------------------
3. July 7, 2011: Rushing Union Elections: Protecting
the Interests of Big Labor at the Expense of Workers'
Free Choice\7\
---------------------------------------------------------------------------
\7\Available at http://edworkforce.house.gov/Calendar/
EventSingle.aspx?EventID=249459.
---------------------------------------------------------------------------
4. Sep. 22, 2011: Culture of Union Favoritism: Recent
Actions of the National Labor Relations Board\8\
---------------------------------------------------------------------------
\8\Available at http://edworkforce.house.gov/Calendar/
EventSingle.aspx?EventID=260180.
---------------------------------------------------------------------------
5. Oct. 12, 2011: H.R. 3094, Workforce Democracy and
Fairness Act\9\
---------------------------------------------------------------------------
\9\Available at http://edworkforce.house.gov/calendar/
eventsingle.aspx?EventID=263036.
---------------------------------------------------------------------------
6. Feb. 7, 2012: The NLRB Recess Appointments:
Implications for America's Workers and Employers\10\
---------------------------------------------------------------------------
\10\Available at http://edworkforce.house.gov/calendar/
eventsingle.aspx?EventID=277173.
---------------------------------------------------------------------------
7. July 25, 2012: Examining Proposal to Strengthen the
National Labor Relations Act\11\
---------------------------------------------------------------------------
\11\Available at http://edworkforce.house.gov/calendar/
eventsingle.aspx?EventID=303444.
---------------------------------------------------------------------------
8. Sep. 12, 2012: Expanding the Power of Big Labor:
The NLRB's Growing Intrusion into Higher Education\12\
---------------------------------------------------------------------------
\12\Available at http://edworkforce.house.gov/calendar/
eventsingle.aspx?EventID=307454.
---------------------------------------------------------------------------
9. Feb. 11, 2013: The Future of the National Labor
Relations Board (NLRB): What Noel Canning v. NLRB Means
for Workers, Employers, and Unions\13\
---------------------------------------------------------------------------
\13\Available at http://edworkforce.house.gov/calendar/
eventsingle.aspx?EventID=319410.
---------------------------------------------------------------------------
In addition, other Committees have held hearings attacking
the NLRB. These include:
House Committee on Appropriations
10. Apr. 6, 2011: Budget Hearing--National Labor
Relations Board--Chairman and Acting General
Counsel\14\
---------------------------------------------------------------------------
\14\Available at http://appropriations.house.gov/Calendar/
EventSingle.aspx?EventID=236067.
---------------------------------------------------------------------------
House Committee on Oversight and Government Reform
11. June 17, 2011: Unionization Through Regulation:
The NLRB's Holding Pattern on Free Enterprise\15\
---------------------------------------------------------------------------
\15\Available at http://oversight.house.gov/index.php?option=com_
content&view=article&id=1339%3A6-17-11-qunionization-through-
regulation-the-nrlbs-holding-pattern-on-free-
enterpriseq&catid=12&Itemid=1.
---------------------------------------------------------------------------
12. Feb. 1, 2012: Uncharted Territory: What are the
Consequences of President Obama's Unprecedented
'Recess' Appointments?\16\
---------------------------------------------------------------------------
\16\Available at http://oversight.house.gov/wp-content/uploads/
2012/06/02-01-12-Full-Committee-Hearing-Transcript.pdf.
---------------------------------------------------------------------------
House Committee on Small Business
13. Oct. 5, 2011: Adding to Uncertainty: The Impact
of DOL/NLRB Decisions and Proposed Rules on Small
Businesses\17\
---------------------------------------------------------------------------
\17\Available at http://smallbusiness.house.gov/Calendar/
EventSingle.aspx?EventID=262090.
---------------------------------------------------------------------------
In addition to these hearings, the Committee also reported
out two anti-worker bills that went on to pass the House. H.R.
2587, the Protecting Jobs from Government Interference Act,
also referred to as the ``Job Outsourcer's Bill of Rights,''
stripped the NLRB of its authority to order an employer to
restore work to the U.S. that had been illegally outsourced in
violation of the NLRA.\18\ Under H.R. 2587, an employer could
retaliate against an organizing drive by shipping jobs to
Mexico or China, and the NLRB would have no authority to order
the jobs back to the U.S. In 2000, the NLRB ordered an employer
to bring jobs back from Mexico after it closed a portion of its
California plant and moved the jobs to Tijuana after U.S.
workers successfully organized a union. With H.R. 2587,
Republicans have enabled the employer to outsource those jobs.
H.R. 2587 made it easier than ever to ship jobs overseas.\19\
This bill passed by 238-186 with an overwhelming 230 supporting
votes from the Republican caucus.\20\
---------------------------------------------------------------------------
\18\Available at http://www.govtrack.us/congress/
billtext.xpd?bill=h112-2587.
\19\Available at http://democrats.edworkforce.house.gov/blog/gops-
job-outsourcers%E2%80%99-bill-rights-facts-hr-2587.
\20\Available at http://clerk.house.gov/evs/2011/roll711.xml.
---------------------------------------------------------------------------
Another House-passed and Republican-sponsored bill, H.R.
3094, the Workforce Democracy and Fairness Act, more
appropriately referred to as the ``Election Prevention Act,''
would frustrate workers' attempts to hold elections for union
representation.\21\ The legislation mandated arbitrary delays
in any worker petition for a union election. For instance, no
election could occur sooner than 35 days after the filing of a
petition.\22\ However, there was no limit on how long an
election might be delayed.\23\ H.R. 3094 enables unscrupulous
employers to pressure employees into abandoning their
organizing efforts.\24\ This bill, sponsored by Committee
Chairman John Kline, passed 235-188 with a majority of
Republicans supporting it.\25\
---------------------------------------------------------------------------
\21\Available at http://www.govtrack.us/congress/
bill.xpd?bill=h112-3094.
\22\Available at http://democrats.edworkforce.house.gov/blog/facts-
republicans-hr-3094-election-prevention-act.
\23\Id.
\24\Id.
\25\Available at http://clerk.house.gov/evs/2011/roll869.xml.
---------------------------------------------------------------------------
A FUNCTIONING NLRB IS KEY TO PROTECTING WORKERS' RIGHTS
For more than 75 years, the National Labor Relations Act
(NLRA) has provided Americans the right to band together in
unions and bargain for a better life. From the beginning, the
National Labor Relations Board has administered and enforced
this law on behalf of workers and employers. Under the law, it
is illegal to retaliate against workers for exercising their
rights. These decades-old rights include the right to strike or
the right to form or join a union or even to simply sign a
petition asking for a raise or better safety equipment.
The freedom to organize and collectively bargain depends
upon the effectiveness of the NLRA and the rights of workers
that are enshrined within the Act. Section 1 of the Act
declares ``it is the policy of the United States'' to encourage
``the practice and procedure of collective bargaining and [to
protect] the exercise by workers of full freedom of
association, self-organizing and designation of representatives
of their own choosing, for the purpose of negotiating the terms
and conditions of their employment, or other mutual aid or
protection.''\26\
---------------------------------------------------------------------------
\26\29 U.S.C. Sec. 151.
---------------------------------------------------------------------------
Section 7 of the Act establishes the fundamental rights of
workers to ``self-organization, to form, join, or assist labor
organizations, to bargain collectively through representatives
of their own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or other
mutual aid or protection, and shall also have the right to
refrain from any or all of such activities . . .''\27\ Section
8 lays out a variety of prohibitions for both employer and
union behavior. For example, employers may not interfere with,
coerce, intimidate, or discriminate against employees in the
exercise of their Section 7 rights. Section 9 lays out the
NLRB-administered process for providing workers with elections
to certify or decertify a union as their exclusive bargaining
representative.
---------------------------------------------------------------------------
\27\29 U.S.C. Sec. 157.
---------------------------------------------------------------------------
To ensure that these rights are meaningful, workers must
have the ability to enforce their rights. While the NLRA does
not require specific remedies, Section 10(c) of the Act
provides that the Board may order ``such affirmative action . .
. as will effectuate the policies of [the] Act.''\28\ The
Supreme Court has held that ``the relief which the statute
empowers the Board to grant is to be adapted to the situation
which calls for redress.''\29\ Unlike modern employment
statutes, such as the Civil Rights Act, there is no individual
right of action under the NLRA for retaliation due to an
employee seeking to exercise their statutory rights. This means
that workers cannot bring a claim in the courts. Aggrieved
workers' only source of recourse is to file a complaint with
the NLRB and their remedies are generally limited, unlike in
the court system. For example, the law only requires employers
to reinstate employees unlawfully discharged, post a notice
promising to never do it again, and pay the employee back wages
minus what the worker earned or should have earned in the
interim. In 2003, the average back-pay amount was a mere
$3,800.\30\
---------------------------------------------------------------------------
\28\29 U.S.C. Sec. 160(c).
\29\NLRB v. MacKay Radio & Telegraph Co., 304 U.S. 333, 348 (1938).
\30\``Strengthening America's Middle Class through the Employee
Free Choice Act,'' Hearing Before the Subcommittee on Health,
Employment, Labor & Pensions, 110th Cong., 1st Sess. (2007) (written
testimony of Nancy Schiffer, at 6).
---------------------------------------------------------------------------
RECESS APPOINTMENTS NECESSARY TO KEEP NLRB FUNCTIONING
NLRB Could Not Function Without Recess Appointments
The NLRB, by statute, has five members who serve five-year
terms.\31\ However, for more than two years, (January 1, 2008
to March 27, 2010) the Board operated with only two members
(Wilma Liebman (D) and Peter Schaumber (R)) because the Senate
failed to confirm nominees to fill vacancies on the Board.\32\
The over 500 decisions issued during this time were generally
non-controversial because they had to be unanimous. However, in
numerous cases, the Board's orders and decisions were
challenged on the basis that the NLRB lacks authority to act
with only two members.\33\ Although five courts of appeals held
that the NLRB could act with only two members,\34\ the Supreme
Court resolved a split among the Circuit Courts of Appeal and
in a 5-4 ruling held that the NLRB does not have the authority
to act without a quorum of three members.\35\ The Board lacked
a quorum from January 1, 2008 to March 27, 2010.
---------------------------------------------------------------------------
\31\29 U.S.C. 153.
\32\See Talk about Recess Appointments Follows Senate's Defeat of
Cloture Motion on Becker, 30 Daily Lab. Rep. A-10 (Feb. 17, 2010).
\33\Brief for the National Labor Relations Board, New Process
Steel, LLP v. NLRB, No. 08-1457 (2010). Available at http://
www.justice.gov/osg/briefs/2009/3mer/2mer/2008-1457.mer.aa.pdf.
\34\Northeastern Land Services, Ltd. v. NLRB, 560 F.3d 36, 41 (1st
Circuit 2009); Snell Island SNF LLC v. NLRB, 568 F.3d 410, 424 (2d
Circuit 2009); Narricot Industries, L.P. v. NLRB, 587 F.3d 654, 660
(4th Circuit 2009); New Process Steel, LLP v. NLRB, 564 F.3d 840, 845
(7th Circuit 2009); Teamsters Local Union No. 523 v. NLRB, 590 F.3d
849, 852 (10th Circuit 2009).
\35\New Process Steel, LLP v. NLRB, No. 08-1457 (Supreme Court of
the United States 2010). Available at http://www.supremecourt.gov/
opinions/09pdf/08-1457.pdf.
---------------------------------------------------------------------------
The Board regained a quorum in March 2010 when President
Obama, recognizing the need to have a fully-functioning Board,
appointed Craig Becker and Mark Pearce during a Congressional
recess.\36\ The Board was once again reduced to 2 members after
Chairwoman Liebman's term expired in August 2011 and Craig
Becker's term expired on January 3, 2012. The next day, January
4, President Obama used his recess powers and appointed three
new members to the Board: Democratic nominees Sharon Block, and
Richard F. Griffin, Jr., and Republican nominee Terence F.
Flynn. Although all three Members were appointed on the same
day, the President had previously nominated each appointed
Member.\37\
---------------------------------------------------------------------------
\36\Both Mark Pearce and Brian Hayes (R) were confirmed by the
Senate in June 2010.
\37\Terrence Flynn was nominated by President Obama in January 2011
and had been working at the Board as chief counsel to Member Hayes.
Both Sharon Block and Richard Griffin were nominated on December 14,
2011.
---------------------------------------------------------------------------
Republican Obstruction of Appointments
President Obama made the Board recess appointments at a
time when there had been an escalating battle surrounding the
confirmation process and relentless Republican attacks on the
NLRB. Senate Republicans openly admitted that they would
utilize procedural tactics to prevent confirmation. Senator
Lindsey Graham even vowed to block all nominees to the NLRB,
saying ``the NLRB as inoperable could be considered
progress.''\38\
---------------------------------------------------------------------------
\38\Senator Tom Harkin (IA). ``Recess Appointments.'' Congressional
Record 158: 12 (January 26, 2012) p. S88 Available at http://
www.gpo.gov/fdsys/pkg/CREC-2012-01-26/pdf/CREC-2012-01-26.pdf
---------------------------------------------------------------------------
Obstruction of President Obama's appointments has not been
limited to his nominations to the Board. In the 111th Congress
alone, the Republican Minority required cloture votes on
President Obama's nominees 21 times--more than in any previous
Congress in history.\39\ As of January 26, 2012, 74 nominees
were pending consideration on the Senate floor while 107 are
held up in committee because of ideological differences.\40\
---------------------------------------------------------------------------
\39\Richard S. Beth and Betsy Palmer, Cloture Attempts on
Nominations, March 9, 2012, CRS RL32878, p. 4.
\40\Jonathan Weisman, Appointments Challenge Senate Role, Experts
Say, N.Y. Times (Jan. 7, 2012)
---------------------------------------------------------------------------
Republicans have also worked to prevent nominations by
interfering with the President's power to make recess
appointments. In 2011, almost 80 freshman Representatives
requested that Speaker Boehner, Majority Leader Cantor, and
Majority Whip McCarthy take ``all appropriate measures to
prevent any and all recess appointments by preventing the
Senate from recessing for the remainder of the 112th
Congress.''\41\ Signatories to this letter include seven
Committee Republicans: Representatives DesJarlais, Rokita,
Bucshon, Gowdy, Barletta, Roby, and Heck.\42\
---------------------------------------------------------------------------
\41\Congressman Jeff Landry et al., Letter to Speaker Boehner,
Majority Leader Cantor and Majority Whip McCarthy, June 15, 2011.
\42\Id.
---------------------------------------------------------------------------
In 2011, the Republican Majority began scheduling pro forma
sessions in the House--in an attempt to withhold adjournment
consent and prevent the Senate from recessing. As a result, the
Senate has held pro forma sessions roughly every three days
during breaks based on a prior Department of Justice (``DOJ'')
memo suggesting that a three-day recess minimum is needed to
trigger appointment authority. However, the Eleventh Circuit in
Evans v. Stephens held that the ``Constitution, on its face,
does not establish a minimum time that an authorized break in
the Senate must last to give legal force to the President's
appointment under the Recess Appointment Clause.''\43\ Prior to
making the recent recess appointments the President consulted
DOJ. On January 6, 2012, DOJ issued a memorandum opinion for
the counsel to President Obama that reaffirmed this principle.
The DOJ concluded that the President had discretion to
determine that the Senate was unavailable to perform its
advise-and-consent function and to exercise his recess
appointment power.\44\
---------------------------------------------------------------------------
\43\Evans v. Stephens, 387 F.3d 1220, 1224 (11th Cir. 2004).
\44\Department of Justice memo Lawfulness of Recess Appointments
During a Recess of the Senate Notwithstanding Periodic Pro Forma
Sessions, January 6, 2012 at 23.
NOMINATIONS AND RECESS APPOINTMENTS TO NATIONAL LABOR RELATIONS BOARD, 2009--MARCH 201345
--------------------------------------------------------------------------------------------------------------------------------------------------------
Presidential Final Senate
Congress Nominee (a) action Date status (b) Subsequent action Date
--------------------------------------------------------------------------------------------------------------------------------------------------------
111............................. Brian Hayes........ Nominated.......... 7/9/2009 Confirmed......... .................. 6/22/2010
111............................. Mark Gaston Pearce. Nominated.......... 7/9/2009 Confirmed......... .................. 6/22/2010
111............................. Mark Gaston Pearce. Recess appointment 3/27/2010
announced.
111............................. Mark Gaston Pearce. Nominated.......... 4/21/2010 Referred.......... Returned to 12/22/2010
President.
111............................. Craig Becker (c)... Nominated.......... 7/9/2009 Reported.......... Returned to 12/24/2009
President.
111............................. Craig Becker (c)... Nominated.......... 7/9/2009 Reported.......... Returned to 12/24/2009
President.
111............................. Craig Becker....... Nominated.......... 1/20/2010 Cloture rejected.. Returned to 8/5/2010
President.
111............................. Craig Becker....... Recess appointment 3/27/2010
announced.
111............................. Craig Becker....... Nominated.......... 4/21/2010 Referred.......... Returned to 12/22/2010
President.
112............................. Craig Becker....... Nominated.......... 1/26/2011 Referred.......... Withdrawn......... 12/15/2011
112............................. Terence Francis Nominated.......... 1/5/2011 Referred.......... Withdrawn......... 6/7/2012
Flynn.
112............................. Terence Francis Recess appointment 1/4/2012
Flynn. announced.
112............................. Terence Francis Nominated.......... 2/13/2012 Referred.......... Withdrawn......... 6/7/2012
Flynn.
112............................. Lafe E. Solomon (d) Nominated.......... 1/5/2011 Referred.......... Returned to 1/3/2013
President.
112............................. Richard F. Griffin, Nominated.......... 12/15/2011 Referred.......... Returned to 1/3/2013
Jr. President.
112............................. Richard F. Griffin, Recess appointment 1/4/2012
Jr. announced.
112............................. Richard F. Griffin, Nominated.......... 2/13/2012 Referred.......... Returned to 1/3/2013
Jr. President.
113............................. Richard F. Griffin, Nominated.......... 2/13/2013 Referred..........
Jr.
112............................. Sharon Block....... Nominated.......... 12/15/2011 Referred.......... Returned to 1/3/2013
President.
112............................. Sharon Block....... Recess appointment 1/4/2012
announced.
112............................. Sharon Block....... Nominated.......... 2/13/2012 Referred.......... Returned to 1/3/2013
President.
113............................. Sharon Block....... Nominated.......... 2/13/2013 Referred .........
--------------------------------------------------------------------------------------------------------------------------------------------------------
45Legislative Information System of the U.S. Congress (LIS), ``Nominations'' file. Recess appointment information from CRS Report R42329, Recess
Appointments Made by President Barack Obama, by Henry B. Hogue and Maureen Bearden.
Notes:
(a) Except as noted, all nominees were nominated as Members of the NLRB. See text of memorandum for explanation of overlapping nominations to the same
term of the same position.
(b) For nominations that received floor action, the entry in this column appears in boldface.
(c) Becker was nominated simultaneously for a term ending December 16, 2009, and a term ending December 16, 2014.
(d) Solomon was nominated not as a Member of the NLRB, but as its General Counsel.
NOEL CANNING--OVERTURNING LONG-ESTABLISHED INTERPRETATION OF
PRESIDENT'S CONSTITUTIONAL APPOINTMENT POWER
Legal challenges were quickly filed against President
Obama's recess appointments to the Board (and the Consumer
Financial Protection Bureau). In January 2013, a three-judge
panel of the United States Court of Appeals for the D.C.
Circuit held in the Noel Canning case that President Obama's
recess appointments of NLRB Members Block and Griffin were
invalid. The court's decision broke with long-established
precedent and has implications far beyond the NLRB, calling
into question hundreds of previous presidential appointments
across the federal government and federal courts.
Noel Canning
Noel Canning was initially the subject of an unfair labor
practice (``ULP'') proceeding filed by the Teamsters before the
NLRB. The case arose out of a dispute between the employer,
Noel Canning, a soft drink bottler, and the International
Brotherhood of Teamsters Local 760, concerning whether there
was an agreement on the terms of a collective bargaining
agreement and whether Noel Canning committed an unfair labor
practice in refusing to execute the collective bargaining
agreement. In this case, the employer and the union were
negotiating a new contract. While the union asserts the parties
were able to reach an agreement, the employer refused to
execute it and the union filed a ULP with the Board. The NLRB
Administrative Law Judge (``ALJ'') ruled in favor of the union
and the Board affirmed the ALJ decision. Consequently, Noel
Canning appealed that decision to the D.C. Circuit. The NLRB
petitioned for enforcement of its decision and order.
D.C. Circuit Decision
In its appeal before the D.C. Circuit Court, Noel Canning
challenged the validity of the Board's decision and argued the
Board did not have a quorum to issue a decision in the case
because the recess appointments were not valid. The D.C.
Circuit ruled in favor of the Noel Canning Company, agreed with
the employer and invalidated Obama's recess appointments on two
grounds. It first held that the Recess Appointments Clause
refers only to intersession recess (between two formal sessions
of Congress) and does not include intrasession breaks or
adjournments.\46\ Under that reasoning, President Obama's
appointment of Members Block and Griffin on January 4, 2012
constituted an intrasession appointment and was therefore
invalid. The D.C. Circuit then considered when a vacancy must
``happen'' for purposes of the Recess Appointments Clause. They
concluded that the clause covers only vacancies that arise
during the recess, not vacancies that ``happen to exist'' when
the recess begins (i.e., a seat vacant before recess begins
cannot be filled during recess). This interpretation further
restrains the president's recess appointment powers. The court
held that President Obama's NLRB appointments were invalid on
this basis as well, given that none of the vacancies themselves
arose during an intersession recess. For these two reasons, the
D.C. Circuit found the Board lacked a quorum and could not
lawfully decide the underlying case, a basic unfair labor
practice case.
---------------------------------------------------------------------------
\46\Noel Canning v. NLRB, No. 12-1153 Consolidated with 12-1153,
slip op. at 30 (Jan. 25, 2013). Available at http://
www.cadc.uscourts.gov/internet/opinions.nsf/D13E4C2A
7B33B57A85257AFE00556B29/$file/12-1115-1417096.pdf.
---------------------------------------------------------------------------
The opinion contradicts federal appellate precedent in
three circuits. In 2004, the Eleventh Circuit upheld President
Bush's intrasession recess appointment of Judge Pryor. Evans v.
Stephens, 387 F.3d 1220 (2004) (en banc). The Second and Ninth
Circuits both refused to limit the President's appointment
powers to vacancies that arise during a recess. United States
v. Woodley, 726 F.2d 1328 (9th Cir. 1982); United States v.
Allocco, 305 F.2d 704 (2nd Cir. 1962).
Implications of Noel Canning
The recess appointment power is provided for under Article
II of the Constitution, which states that ``[t]he President
shall have Power to fill up all Vacancies that may happen
during the Recess of the Senate, by granting Commissions which
shall expire at the End of their next Session.''\47\ Using this
power, Presidents have appointed hundreds of individuals to
positions at various agencies and the federal courts. Reagan
made 232 such appointments over the course of his presidency.
Clinton made 139, and George W. Bush made 171. George H.W. Bush
used the power 74 times in his single term--more than double
the 32 times it was used during the first term of the Obama
administration.\48\ There have been 29 total recess
appointments to the NLRB, and every president since Carter has
exercised this power for Board appointments.\49\
---------------------------------------------------------------------------
\47\U.S. Constitution Article II, Section 2, Clause 3.
\48\See Congressional Research Service, ``The Noel Canning Decision
and Recess Appointments Made from 1981-2013'', Table 1. (Feb. 4, 2013).
\49\See Congressional Research Service, ``The Noel Canning Decision
and Recess Appointments Made from 1981-2013'', Tables 2-11. (Feb. 4,
2013).
---------------------------------------------------------------------------
The D.C. Circuit's decision in Noel Canning extends far
beyond the current challenges to the President's Board recess
appointments. Under the Court's holding in the case hundreds of
recess appointments would be invalidated if they were subject
to the decision, including as many as 25 recess appointments to
the NLRB.\50\ The Congressional Research Service (CRS) has
recently estimated that since January 20, 1981, presidents have
made a total of 329 intrasession recess appointments, each of
which would be invalid under Noel Canning. Reagan made 72 such
appointments, George H.W. Bush made 37, and Clinton made 53.
Ironically, the most active president in making intrasession
recess appointments was Republican George W. Bush, who made 141
during his presidency, while President Obama has made only 26--
the fewest of any president since Reagan.\51\ Data is not
readily available on the exact number of recess appointments
that would have been invalidated under the alternative grounds
specified in Noel Canning--i.e., those intersession recess
appointments in which the vacancy did not ``arise'' during a
recess--however CRS concluded that there are a ``substantial
number'' of these appointments as well.\52\
---------------------------------------------------------------------------
\50\Id.
\51\Henry B. Hogue, Maeve P. Carey, Michael W. Greene and Maureen
Bearden, The Noel Canning Decision and Recess Appointments Made from
1981-2013, Feb. 4, 2013, CRS Memorandum, available at http://
democrats.edworkforce.house.gov/sites/democrats.edworkforce.house.gov/
files/documents/112/pdf/Recess%20Appointments%201981-2013.pdf.
\52\Id. at 3.
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The appointments potentially invalidated by Noel Canning
would disrupt the work of many federal agencies, ranging from
the Department of the Treasury to the Office of Management and
Budget--and include appointments to critical positions. For
example, President Reagan's intrasession recess appointment of
Donald P. Hodel to serve as Secretary of Energy on November 5,
1982 would have been invalidated by Noel Canning, as would
President George W. Bush's nomination of John R. Bolton to
serve as U.S. Representative to the United Nations Appointee on
August 1, 2005. Ambassador Bolton served out his recess
appointment without ever receiving Senate approval. The federal
courts themselves would also be impacted by the D.C. Circuit
Court's decision in Noel Canning. For example, President George
W. Bush intrasession appointed William H. Pryor on February 20,
2004 to serve on the U.S. Court of Appeals for the Eleventh
Circuit. His nomination and all the cases in which he
participated could be invalidated until his confirmation on
June 9, 2005.
House Republicans did not raise concerns about the
constitutionality of these prior intrasession appointments by
Presidents who were not Barack Obama.
NUMBER OF DOCUMENTED INTRASESSION AND INTERSESSION RECESS APPOINTMENTS SINCE JANUARY 20, 1981, BY PRESIDENT
--------------------------------------------------------------------------------------------------------------------------------------------------------
Intrasession recess Intersession recess Total documented recess
Administration appointments (estimate) appointments (estimate) appointments
--------------------------------------------------------------------------------------------------------------------------------------------------------
Ronald W. Reagan.............................................. 72 160 232
George H. W. Bush............................................. 37 41 78
William J. Clinton............................................ 53 86 139
George W. Bush................................................ 141 30 171
Barack H. Obama............................................... 26 6 32
Total................................................. 329 323 652
--------------------------------------------------------------------------------------------------------------------------------------------------------
H.R. 1120 DENIES WORKERS & EMPLOYERS ANY EFFECTIVE REMEDY WHEN THEIR
NLRA RIGHTS ARE VIOLATED
H.R. 1120 requires the NLRB to cease all activity that
requires a quorum of Board members. The bill is nothing more
than an attempt to shut down the only agency with the authority
to ensure workers have the right to organize and bargain
collectively. Nothing in this legislation protects workers or
employers or provides greater certainty in labor-management
relations. At nearly every Committee hearing on Board matters,
witnesses have testified that the politicized exercises
Committee Republicans continue to engage in against the Board
does nothing to harmonize labor-management relations.
H.R. 1120 requires the Board to cease all activity that
requires a quorum of members until (1) a quorum of Board
members are confirmed by the Senate, (2) the Supreme Court
issues a decision on the constitutionality of the recess
appointments, (3) the adjournment sine die of the first session
of the 113th Congress. In the event that a quorum of members is
confirmed by the Senate or the 113th Congress adjourns sine
die, no decision, rule, vote, or other action taken by the
Board on or after January 4, 2012 will be enforceable. This
means that all decisions issued by the Board during that time
(approximately 569 decisions) will remain unenforceable. In
addition, the bill would prevent the Board from enforcing
decisions issued prior to January 4, 2012, where parties are in
contempt.
Specifically, the bill affects the Board's ability to act
in the following areas:
Decisions & Orders--Under this bill, the Board will be prevented from
issuing decisions.
After an ALJ in a ULP proceeding or a Regional
Director in an election case issues a decision, a party may
appeal to the Board. Under H.R. 1120, parties could appeal, but
the Board would be prevented from deciding the issue, creating
uncertainty for employees, employers, and unions alike. For
example, a worker unlawfully fired from her job may be awarded
an order of reinstatement by an ALJ. If that decision is
appealed, the Board cannot hear the appeal, and the injured
worker will remain out of her job, with her family enduring the
associated consequences, while H.R. 1120 is in effect.
Petition for Enforcement of an Order
Board orders are not self-enforcing. Only a U.S.
Circuit Court of Appeals can enforce Board orders, and the
Board must petition for such enforcement.\53\ Under H.R. 1120,
there would be no way to enforce Board orders in ULP charges,
whether the order was the product of the current Board or a
prior Board.
---------------------------------------------------------------------------
\53\See, 29 U.S.C. Sec. 160(e).
---------------------------------------------------------------------------
Pursuing Injunctive Relief
In some cases where a ULP is filed, the alleged
violation is so severe that immediate steps are necessary to
prevent further harm to workers whose rights have been
violated. Under the NLRA, only the Board can grant the General
Counsel permission to petition a Federal District Court for
10(j) injunctive relief. Under H.R. 1120, there will be no way
for the NLRB to enjoin or restrain plainly unlawful acts
pending resolution of a charge. In other words, H.R. 1120
creates an open season on pro-union workers, who might be fired
en masse for attempting to organize, removing them from the
workforce while H.R. 1120 is in effect.
Elections
Under the NLRA, prior to an election being held,
a party may challenge a Regional Director's determination of
the bargaining unit, by filing a ``petition for review'' with
the Board. Under the Board's internal rules (Section 11274 of
the Casehandling Manual), ``[t]he filing of a request for
review shall not, unless otherwise ordered by the Board,
operate as a stay of any action taken or directed by the
Regional Director, including the direction or conduct of an
election, except that the Regional Director, in the absence of
a waiver, may not open and count any ballots that may be
challenged until the Board has ruled on any request for review
that may be filed. Nor will the granting of review stay the
Regional Director's decision or the directed election unless
ordered by the Board.'' Under H.R. 1120, the Board would not be
able to ``rule on any request for review.'' Therefore, by
simply filing this petition for review, a party can stop
ballots from being opened and counted under H.R. 1120.
If neither party files a petition for review and
the ballots are opened and counted, a party can ignore the
election results under H.R. 1120. In the case of a
certification election, for example, if the Regional Director
determines that the union has won the election and orders the
parties to begin collective bargaining, the employer may simply
refuse to collectively bargain. The union may file an unfair
labor practice charge. It may prevail before an ALJ. The
employer can then appeal the decision to the full Board, where
no further action may be taken under H.R. 1120.
Appointment of Regional Directors
The Board must approve the appointment, transfer,
or discharge of any Regional Director.\54\ The current Board
has appointed or transferred 10 Regional Directors and
additional vacancies are likely to occur. Under H.R. 1120, one-
third of the Agency's regional offices would be without a
Director. Workers and employers in those regions would be
unable to have election petitions addressed, elections held or
certified, or ULP complaints issued. Regions in which the NLRA
will be effectively repealed while H.R. 1120 is in effect
include Atlanta, covering the southeast; Tampa, covering most
of Florida; Brooklyn; Manhattan; Los Angeles, covering southern
California; Detroit, covering most of Michigan; Philadelphia,
covering eastern Pennsylvania and southern New Jersey; Seattle,
covering the northwest; Puerto Rico; and Milwaukee covering
most of Wisconsin and the Michigan upper peninsula. Moreover,
it is not at all clear what comes of decisions already made by
these appointed Regional Directors, including whether certified
elections become uncertified under this bill.
---------------------------------------------------------------------------
\54\77 Fed. Reg. 45696.
---------------------------------------------------------------------------
Issuing Rules and Regulations
Under H.R. 1120, the Board would be prevented
from issuing rules and regulations. While Republicans have
criticized the Board's attempts to issue regulations that would
have required the posting of an employee rights' notice and
improved the election process, this legislation also prevents
the Board from taking basic administrative steps to improve
Agency efficiency. For example, the Board's effort to
streamline its regional offices requires changes to the
Agency's rules and would, therefore, be prohibited under H.R.
1120.
Unfair Labor Practice Strikes
In labor law, two different tools are available
to parties: legal remedies and economic weapons. Under H.R.
1120, if an employer refuses to comply with an Administrative
Law Judge decision, with no effective appeals process in place
to enforce that decision, or a complaint process is rendered
unavailable in a region of the country, the only recourse
available to workers is the economic weapon--specifically, an
unfair labor practice strike. In this way, H.R. 1120 encourages
workers to engage in work stoppages if they need to remedy
various violations of the NLRA, such as an unlawful firing or
bad faith bargaining. The bill not only increases uncertainty,
it increases instability and unrest in workplaces and in the
national economy. This result should be unsurprising, as the
NLRB was established, not just to protect the rights of workers
and employers, but ``to provide orderly and peaceful procedures
for preventing the interference by either with the legitimate
rights of the other.'' By shutting down the NLRB, H.R. 1120
invites chaos in labor relations.
UNIONS AND THE MIDDLE CLASS
The consequences of H.R. 1120 cannot be understated. H.R.
1120 is an assault on workers and their right to organize and
collectively bargain. By shutting down the only agency with the
authority to enforce the right to organize and collectively
bargain, Republicans continue to attempt to frustrate workers'
attempts to organize and have a voice in the workplace. These
attacks are especially damaging as our nation emerges from the
Great Recession. Unions helped build the American middle class.
At a time when wages are stagnant and wealth is increasingly
concentrated, it is critical that workers have a meaningful
voice in our economic recovery. In fact, wage depreciation,
egregious inequality, and excessive corporate power that
undermined the ability of the average worker to make a living
wage spurred the passage of the NLRA in 1935.
U.S. Senator Robert F. Wagner, the author of the NLRA,
reviewed economic conditions leading up to the Great Depression
in a May 15, 1935 speech to the Senate, stating that
By 1929, 200 huge corporations owned one-half of our
total corporate wealth. Two years later, 100 general
industrial corporations out of a total of 300,000
controlled one third of the general industrial wealth
of the Nation. As a natural corollary, the wage
earners' share in the product created by manufacturing
has declined steadily for nearly a century. . . .
Sixteen million families, or 60 percent of the people,
had annual incomes below the $2,000 per year necessary
for the basic requirements of health and decency. And
nearly 20,000,000 families, constituting 71 percent of
all America, received less than $2,500 a year. At the
same time, in the highest income bracket, one-tenth of
1 percent of the families in the United States were
earning as much as the 42 percent at the bottom.\55\
---------------------------------------------------------------------------
\55\Leon H. Keyserling. The Wagner Act: Its Origin and Current
Significance, 29 George Washington Law Review 199 (1960-1961).
The economic conditions that contributed to the Great
Depression mirror many of the same conditions that led to the
Great Recession. Now is not the time to impede workers' rights
under the NLRA, which for decades helped reverse wage
stagnation and income inequality. As unions came under
increasing assault in recent decades, wage growth has declined,
and income disparities have increased. A recent study from
Northeastern University found that, between 2009 when the
economic recovery began and the end of 2010, national income
rose by $528 billion with $464 billion of that growth going to
corporate profits and $7 billion to wages and salaries.\56\
Better wages mean workers have money to spend on their
families, which is good for local businesses and good for job
creation.
---------------------------------------------------------------------------
\56\Andrew Sum, et al., The ``Jobless and Wageless'' Recovery from
the Great Recession of 2007-2009: The Magnitude and Sources of Economic
Growth Through 2011 I and Their Impacts on Workers, Profits, and Stock
Values, Northeastern University (2011). Available at http://
www.clms.neu.edu/publication/documents/
RevisedlCorporatelReportlMayl27th.pdf.
---------------------------------------------------------------------------
Current data overwhelmingly shows that employees in
unionized workplaces earn significantly more than non-union
workers. According to the Bureau of Labor Statistics, the
median weekly earnings of full-time union workers in 2012 were
$943 compared with $742 for nonunion workers--or $10,400 more
per year per worker.\57\ In addition, unionization also raises
the wages of the typical low-wage worker by 20.6%.\58\ And
unionized high school graduates earned 17% more than non-
unionized high school graduates in 2011.\59\
---------------------------------------------------------------------------
\57\Bureau of Labor Statistics. ``Union Members--2012'' (January
23, 2013) Available at
http://www.bls.gov/news.release/pdf/union2.pdf.
\58\Schmitt, John. ``The Union Wage Advantage for Low-Wage
Workers'' Center for Economic and Policy Research (May 2008).
\59\Lawrence Mishel. ``Unions, Inequality, and Faltering Middle-
Class Wages'' Economic Policy Institute (Aug. 29, 2012). Available at
http://www.epi.org/files/2012/ib342-unions-inequality-middle-class-
wages.pdf.
---------------------------------------------------------------------------
In addition, union workplaces are more likely to provide
employees with critical benefits, including health insurance
and retirement benefits. Union workers are 28.2% more likely
than their nonunion counterparts to have employer-sponsored
healthcare plans.\60\ Furthermore, 71.9% of union workers are
offered employer-provided pensions, compared with only 43.8% of
nonunion workers. When this difference is adjusted for other
factors, union members are 53.9% more likely to have pension
coverage.\61\ In addition, union workers are 285%--nearly three
times--more likely than nonunion workers to have defined-
benefit pensions.\62\
---------------------------------------------------------------------------
\60\Id.
\61\Id.
\62\AFL-CIO. ``The Union Difference: Union Advantage by the
Numbers'' (January 2009) Available at http://www.cirseiu.org/files/
2012/01/Union-advantage-by-the-numbers.pdf.
---------------------------------------------------------------------------
Participation in unions is important to improving the lives
of women and minorities. Unions raise the wages of women
workers, who have traditionally earned less than their male
counterparts.\63\ In 2012, the median wage for women union
workers was 32.3% greater than the median wage for their
nonunion counterparts.\64\ Unions also raise the wages of
minorities, helping close racial and ethnic wage gaps.\65\ In
2012, the median wage for African American union workers was
30.9% greater than the median wage for their nonunion
counterparts.\66\ In 2012, the median wage for Hispanic union
workers was 58.5% greater than the median wage for their
nonunion counterparts.\67\
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\63\Schmitt, John. ``Unions and Upward Mobility for Women Workers''
Center for Economic and Policy Research (February 23, 2009).
\64\Bureau of Labor Statistics. ``Union Members--2012.''
\65\Lawrence Mishel. ``Unions, Inequality, and Faltering Middle-
Class Wages.''
\66\Bureau of Labor Statistics. ``Union Members--2012.''
\67\Id.
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Finally, unions reduce wage inequality. According to the
Economic Policy Institute:
Collective bargaining reduces wage inequality for
three reasons. The first is that wage setting in
collective bargaining focuses on establishing
``standard rates'' for comparable work across business
establishments and for particular occupations within
establishments. The outcome is less differentiation of
wages among workers and, correspondingly, less
discrimination against women and minorities. A second
reason is that wage gaps between occupations tend to be
lower where there is collective bargaining, and so the
wages in occupations that are typically low-paid tend
to be higher under collective bargaining. A third
reason is that collective bargaining has been most
prevalent among middle-class workers, so it reduces the
wage gaps between middle-class workers and high earners
(who have tended not to benefit from collective
bargaining).\68\
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\68\Lawrence Mishel, The decline of collective bargaining and the
erosion of middle-class incomes in Michigan, EPI Briefing Paper #347,
p. 2, September 25, 2012. Available at http://www.epi.org/files/2012/
bp347-collective-bargaining.pdf.
In H.R. 1120, Committee Republicans have introduced a bill
that does nothing to create jobs, improve the economy, or
provide certainty in labor-management relations. Instead, they
have again decided to spend Committee time and resources on a
bill attacking the right of workers to organize and bargain
collectively. If enacted, this legislation would leave workers
and employers without a legal process and remedies when their
NLRA rights are violated. This bill sends a clear message to
workers and employers--in the 113th Congress, their rights and
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concerns will again take a backseat to partisan politics.
George Miller, Senior Democratic
Member.
Bobby Scott.
Carolyn McCarthy.
Rush Holt.
Raul M. Grijalva.
Dave Loebsack.
Marcia L. Fudge.
Gregorio Kilili Camacho Sablan.
Frederica S. Wilson.
Robert E. Andrews.
Ruben Hinojosa.
John F. Tierney.
Susan A. Davis.
Tim Bishop.
Joe Courtney.
Jared Polis.
John Yarmuth.
Suzanne Bonamici.