29–006 

113TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 1st Session 113–30 

PREVENTING GREATER UNCERTAINTY IN LABORMANAGEMENT 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 


rfrederick on DSK6VPTVN1PROD with HEARING
2 

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 LABORMANAGEMENT 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. 


rfrederick on DSK6VPTVN1PROD with HEARING
3 

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 


rfrederick on DSK6VPTVN1PROD with HEARING
4 

1The 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). 

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). 

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. 


rfrederick on DSK6VPTVN1PROD with HEARING
5 

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. 3 Hamilton, Alexander, The Federalist Papers No. 67 (March 11, 1788). 4 Id. 

5 Id. 

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. 

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 recess2 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. 

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

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

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 apVerDate Mar 15 2010 07:24 Apr 10, 2013 Jkt 029006 PO 00000 Frm 00005 Fmt 6659 Sfmt 6602 E:\HR\OC\HR030.XXX HR030

rfrederick on DSK6VPTVN1PROD with HEARING
6 

9 Id. 

10 Id. at 1520, quoting Letter from Alexander Hamilton to James McHenry, at 94. 11See Rappaport, Michael B., The Original Meaning of the Recess Appointments Clause, 52 

UCLA L. Rev. 1487, 1518 (2005). 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). 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. 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). 22See 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). 

pointment.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

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. 

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

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


rfrederick on DSK6VPTVN1PROD with HEARING
7 

23 Hogue, Henry B., Recess Appointments: Frequently Asked Questions, Congressional Research 

Service, 10 (January 9, 2012). 24Sen. 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). 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. 29Memorandum 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). 30Id. 

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

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

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

Despite the fact that the Senate, days before the appointments, 

passed the Temporary Payroll Tax Cut Continuation Act of 2011 


rfrederick on DSK6VPTVN1PROD with HEARING
8 

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). 32Memorandum 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. 35Meese, Edwin, and Todd Gaziano, Obama’s Recess Appointments are Unconstitutional, The 

Heritage Foundation (January 5, 2012). 36The 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]. 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). 38 Noel Canning v. NLRB, No. 12–1115, slip. Op., 3 (D.C. Cir 2013). 

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

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

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

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

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 


rfrederick on DSK6VPTVN1PROD with HEARING
9 

39 Id. at 3. 40 Id. at 30. 41 Id. at 17, 30. 42 Id. at 17. 43 Id. at 44. 44Dube, Lawrence E., NLRB Officials Describe Efforts to Stay Ahead of Noel Canning and 

Looming Sequestration, Daily Labor Report (February 27, 2013). 45Statement 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. 

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. 

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

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

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 


rfrederick on DSK6VPTVN1PROD with HEARING
10 

47 29 U.S.C. 160(f). 48Maxwell 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). 51The 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]. 52The 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]. 

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. 

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

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

While not a perfect analogy, the events surrounding New Process 

Steel, L.P. v. NLRB (New Process Steel) provide some idea of the 


rfrederick on DSK6VPTVN1PROD with HEARING
11 

53 New Process Steel v. NLRB, 130 S. Ct. 2635, 2639 (2010). 54Kaplan, 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. 56The 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). 58Dude, Lawrence E., NLRB Officials Describe Efforts to Stay Ahead of Noel Canning and 

Looming Sequestration, Daily Labor Report (February 27, 2013). 59 Colgate-Palmolive-Peet Co. v. NLRB, 338 U.S. 355, 362–3 (1949). 60Devaney Testimony at 3. 

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 twomember 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. 

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

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 cirVerDate Mar 15 2010 07:24 Apr 10, 2013 Jkt 029006 PO 00000 Frm 00011 Fmt 6659 Sfmt 6602 E:\HR\OC\HR030.XXX HR030

rfrederick on DSK6VPTVN1PROD with HEARING
12 

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-seeksupreme-court-review-noel-canning-v-nlrb (last visited on March 26, 2013). 

cumstances, the Education and the Workforce Committee was compelled to consider and approve H.R. 1120, the Preventing Greater 

Uncertainty in Labor-Management Relations Act. 

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. 

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. 


rfrederick on DSK6VPTVN1PROD with HEARING
13 

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. 


rfrederick on DSK6VPTVN1PROD with HEARING
14 


rfrederick on DSK6VPTVN1PROD with HEARINGInsert offset folio 15 here HR30.001
15 


rfrederick on DSK6VPTVN1PROD with HEARINGInsert offset folio 16 here HR30.002
16 

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. 


rfrederick on DSK6VPTVN1PROD with HEARING
17 

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. 


rfrederick on DSK6VPTVN1PROD with HEARING
(18) 

MINORITY VIEWS 

H.R. 1120, ‘‘THE PREVENTING GREATER UNCERTAINTY IN LABORMANAGEMENT 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, proVerDate Mar 15 2010 07:24 Apr 10, 2013 Jkt 029006 PO 00000 Frm 00018 Fmt 6604 Sfmt 6604 E:\HR\OC\HR030.XXX HR030

rfrederick on DSK6VPTVN1PROD with HEARING
19 

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. 4 H.R. 2926, available at http://thomas.loc.gov/cgi-bin/query/z?c112:H.R.2926. 

tecting 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 nonunion 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

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: 

• Prohibition of funding used to develop, implement, and enforce 

rules. 

• Prohibition on funding to enforce the NLRB’s Specialty 

Healthcare decision. 

• Prohibition on funding to enforce the NLRB’s Lamon’s Gasket 

decision. 


rfrederick on DSK6VPTVN1PROD with HEARING
20 

5 Available at http://edworkforce.house.gov/Calendar/EventSingle.aspx?EventID=223394. 6 Available at http://edworkforce.house.gov/Calendar/EventSingle.aspx?EventID=242129. 7 Available at http://edworkforce.house.gov/Calendar/EventSingle.aspx?EventID=249459. 8 Available at http://edworkforce.house.gov/Calendar/EventSingle.aspx?EventID=260180. 9 Available at http://edworkforce.house.gov/calendar/eventsingle.aspx?EventID=263036. 10 Available at http://edworkforce.house.gov/calendar/eventsingle.aspx?EventID=277173. 11 Available at http://edworkforce.house.gov/calendar/eventsingle.aspx?EventID=303444. 12 Available at http://edworkforce.house.gov/calendar/eventsingle.aspx?EventID=307454. 13 Available at http://edworkforce.house.gov/calendar/eventsingle.aspx?EventID=319410. 14 Available at http://appropriations.house.gov/Calendar/EventSingle.aspx?EventID=236067. 15 Available at http://oversight.house.gov/index.php?option=coml 

content&view=article&id=1339%3A6-17-11-qunionization-through-regulation-the-nrlbs-holdingpattern-on-free-enterpriseq&catid=12&Itemid=1. 

Republicans also included several riders to other FY 2012 House 

Appropriations bills. 

• A 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. 

• A 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

2. May 26, 2011: Corporate Campaigns and the NLRB: The 

Impact of Union Pressure on Job Creation 6

3. July 7, 2011: Rushing Union Elections: Protecting the Interests of Big Labor at the Expense of Workers’ Free Choice 7

4. Sep. 22, 2011: Culture of Union Favoritism: Recent Actions 

of the National Labor Relations Board 8

5. Oct. 12, 2011: H.R. 3094, Workforce Democracy and Fairness 

Act 9

6. Feb. 7, 2012: The NLRB Recess Appointments: Implications 

for America’s Workers and Employers 10

7. July 25, 2012: Examining Proposal to Strengthen the National Labor Relations Act 11

8. Sep. 12, 2012: Expanding the Power of Big Labor: The 

NLRB’s Growing Intrusion into Higher Education 12

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

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

House Committee on Oversight and Government Reform 

11. June 17, 2011: Unionization Through Regulation: The 

NLRB’s Holding Pattern on Free Enterprise 15


rfrederick on DSK6VPTVN1PROD with HEARING
21 

16 Available at http://oversight.house.gov/wp-content/uploads/2012/06/02-01-12-Full-CommitteeHearing-Transcript.pdf. 17 Available at http://smallbusiness.house.gov/Calendar/EventSingle.aspx?EventID=262090. 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. 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-electionprevention-act. 23 Id. 24 Id. 25 Available at http://clerk.house.gov/evs/2011/roll869.xml. 

12. Feb. 1, 2012: Uncharted Territory: What are the Consequences of President Obama’s Unprecedented ’Recess’ 

Appointments? 16

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

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

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

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 decVerDate Mar 15 2010 07:24 Apr 10, 2013 Jkt 029006 PO 00000 Frm 00021 Fmt 6604 Sfmt 6602 E:\HR\OC\HR030.XXX HR030

rfrederick on DSK6VPTVN1PROD with HEARING
22 

26 29 U.S.C. § 151. 27 29 U.S.C. § 157. 28 29 U.S.C. § 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). 31 29 U.S.C. 153. 

ades-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

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 NLRBadministered process for providing workers with elections to certify 

or decertify a union as their exclusive bargaining representative. 

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

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 


rfrederick on DSK6VPTVN1PROD with HEARING
23 

32See 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. 36 Both Mark Pearce and Brian Hayes (R) were confirmed by the Senate in June 2010. 37Terrence 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. 38Senator 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 39 Richard S. Beth and Betsy Palmer, Cloture Attempts on Nominations, March 9, 2012, CRS 

RL32878, p. 4. 

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. 

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

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

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 


rfrederick on DSK6VPTVN1PROD with HEARING
24 

40 Jonathan Weisman, Appointments Challenge Senate Role, Experts Say, N.Y. Times (Jan. 7, 

2012) 41 Congressman Jeff Landry et al., Letter to Speaker Boehner, Majority Leader Cantor and 

Majority Whip McCarthy, June 15, 2011. 42 Id. 43 Evans v. Stephens, 387 F.3d 1220, 1224 (11th Cir. 2004). 44Department of Justice memo Lawfulness of Recess Appointments During a Recess of the Senate Notwithstanding Periodic Pro Forma Sessions, January 6, 2012 at 23. 

consideration on the Senate floor while 107 are held up in committee because of ideological differences.40

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

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

NOMINATIONS AND RECESS APPOINTMENTS TO NATIONAL LABOR RELATIONS BOARD, 2009— 

MARCH 2013 45

Congress Nominee (a) Presidential action Date Final Senate 

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 

announced.

3/27/2010 

111 ......... Mark Gaston 

Pearce.

Nominated ..... 4/21/2010 Referred ......... Returned to 

President.

12/22/2010 

111 ......... Craig Becker 

(c).

Nominated ..... 7/9/2009 Reported ........ Returned to 

President.

12/24/2009 

111 ......... Craig Becker 

(c).

Nominated ..... 7/9/2009 Reported ........ Returned to 

President.

12/24/2009 

111 ......... Craig Becker .. Nominated ..... 1/20/2010 Cloture rejected.Returned to 

President.

8/5/2010 

111 ......... Craig Becker .. Recess appointment 

announced.

3/27/2010 


rfrederick on DSK6VPTVN1PROD with HEARING
25 

NOMINATIONS AND RECESS APPOINTMENTS TO NATIONAL LABOR RELATIONS BOARD, 2009— 

MARCH 2013 45—Continued 

Congress Nominee (a) Presidential 

action Date Final Senate status (b) 

Subsequent 

action Date 

111 ......... Craig Becker .. Nominated ..... 4/21/2010 Referred ......... Returned to 

President.

12/22/2010 

112 ......... Craig Becker .. Nominated ..... 1/26/2011 Referred ......... Withdrawn ...... 12/15/2011 

112 ......... Terence 

Francis 

Flynn.

Nominated ..... 1/5/2011 Referred ......... Withdrawn ...... 6/7/2012 

112 ......... Terence 

Francis 

Flynn.

Recess appointment 

announced.

1/4/2012 

112 ......... Terence 

Francis 

Flynn.

Nominated ..... 2/13/2012 Referred ......... Withdrawn ...... 6/7/2012 

112 ......... Lafe E. Solomon (d).Nominated ..... 1/5/2011 Referred ......... Returned to 

President.

1/3/2013 

112 ......... Richard F. 

Griffin, Jr. 

Nominated ..... 12/15/2011 Referred ......... Returned to 

President.

1/3/2013 

112 ......... Richard F. 

Griffin, Jr. 

Recess appointment 

announced.

1/4/2012 

112 ......... Richard F. 

Griffin, Jr. 

Nominated ..... 2/13/2012 Referred ......... Returned to 

President.

1/3/2013 

113 ......... Richard F. 

Griffin, Jr. 

Nominated ..... 2/13/2013 Referred.

112 ......... Sharon Block .. Nominated ..... 12/15/2011 Referred ......... Returned to 

President.

1/3/2013 

112 ......... Sharon Block .. Recess appointment 

announced.

1/4/2012 

112 ......... Sharon Block .. Nominated ..... 2/13/2012 Referred ......... Returned to 

President.

1/3/2013 

113 ......... Sharon Block .. Nominated ..... 2/13/2013 Referred.

45 Legislative 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 TeamVerDate Mar 15 2010 07:24 Apr 10, 2013 Jkt 029006 PO 00000 Frm 00025 Fmt 6604 Sfmt 6602 E:\HR\OC\HR030.XXX HR030

rfrederick on DSK6VPTVN1PROD with HEARING
26 

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. 

sters 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. 

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 


rfrederick on DSK6VPTVN1PROD with HEARING
27 

47 U.S. Constitution Article II, Section 2, Clause 3. 48See Congressional Research Service, ‘‘The Noel Canning Decision and Recess Appointments 

Made from 1981–2013’’, Table 1. (Feb. 4, 2013). 49See Congressional Research Service, ‘‘The Noel Canning Decision and Recess Appointments 

Made from 1981–2013’’, Tables 2–11. (Feb. 4, 2013). 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. 

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

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

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. 


rfrederick on DSK6VPTVN1PROD with HEARING
28 

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 

Administration Intrasession recess appointments 

(estimate) 

Intersession recess appointments 

(estimate) 

Total documented recess 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 


rfrederick on DSK6VPTVN1PROD with HEARING
29 

53See, 29 U.S.C. § 160(e). 

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. 

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. 


rfrederick on DSK6VPTVN1PROD with HEARING
30 

54 77 Fed. Reg. 45696. 

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. 

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. 


rfrederick on DSK6VPTVN1PROD with HEARING
31 

55Leon H. Keyserling. The Wagner Act: Its Origin and Current Significance, 29 George Washington Law Review 199 (1960–1961). 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. 

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

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. 

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 earnVerDate Mar 15 2010 07:24 Apr 10, 2013 Jkt 029006 PO 00000 Frm 00031 Fmt 6604 Sfmt 6602 E:\HR\OC\HR030.XXX HR030

rfrederick on DSK6VPTVN1PROD with HEARING
32 

57 Bureau of Labor Statistics. ‘‘Union Members—2012’’ (January 23, 2013) Available at 

http://www.bls.gov/news.release/pdf/union2.pdf. 58Schmitt, John. ‘‘The Union Wage Advantage for Low-Wage Workers’’ Center for Economic 

and Policy Research (May 2008). 59Lawrence 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. 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. 63Schmitt, 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.’’ 65Lawrence Mishel. ‘‘Unions, Inequality, and Faltering Middle-Class Wages.’’ 66 Bureau of Labor Statistics. ‘‘Union Members—2012.’’ 67 Id. 

ings 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

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

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

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 


rfrederick on DSK6VPTVN1PROD with HEARING
33 

68Lawrence 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. 

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

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 concerns will again take a backseat to 

partisan politics. 

GEORGE MILLER, Senior 

Democratic Member. 

BOBBY SCOTT. 

CAROLYN MCCARTHY. 

RUSH HOLT. 

RAU ́ L M. GRIJALVA. 

DAVE LOEBSACK. 

MARCIA L. FUDGE. 

GREGORIO KILILI CAMACHO

SABLAN. 

FREDERICA S. WILSON. 

ROBERT E. ANDREWS. 

RUBE ́ N HINOJOSA. 

JOHN F. TIERNEY. 

SUSAN A. DAVIS. 

TIM BISHOP. 

JOE COURTNEY. 

JARED POLIS. 

JOHN YARMUTH. SUZANNE BONAMICI. 

Æ 


rfrederick on DSK6VPTVN1PROD with HEARING