```

[House Report 113-30]
[From the U.S. Government Publishing Office]

113th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 1st Session                                                     113-30
====================================================================
 
    PREVENTING GREATER UNCERTAINTY IN LABOR-MANAGEMENT RELATIONS ACT

                                _______
                                

 April 9, 2013.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

Mr. Kline, from the Committee on Education and the Workforce, submitted 
                             the following

                              R E P O R T

                             together with

                             MINORITY VIEWS

                        [To accompany H.R. 1120]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Education and the Workforce, to whom was 
referred the bill (H.R. 1120) to prohibit the National Labor 
Relations Board from taking any action that requires a quorum 
of the members of the Board until such time as Board 
constituting a quorum shall have been confirmed by the Senate, 
the Supreme Court issues a decision on the constitutionality of 
the appointments to the Board made in January 2012, or the 
adjournment sine die of the first session of the 113th 
Congress, having considered the same, report favorably thereon 
with an amendment and recommend that the bill as amended do 
pass.
    The amendment is as follows:
  Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Preventing Greater Uncertainty in 
Labor-Management Relations Act''.

SEC. 2. ACTIVITIES BY THE NATIONAL LABOR RELATIONS BOARD PROHIBITED.

  Effective on the date of enactment of this Act, the National Labor 
Relations Board shall cease all activity that requires a quorum of the 
members of the Board, as set forth in the National Labor Relations Act 
(29 U.S.C. 151 et seq.). The Board shall not appoint any personnel nor 
implement, administer, or enforce any decision, rule, vote, or other 
action decided, undertaken, adopted, issued, or finalized on or after 
January 4, 2012, that requires a quorum of the members of the Board, as 
set forth in such Act.

SEC. 3. TERMINATION.

  The provisions of this Act shall terminate on the date on which--
          (1) all members of the National Labor Relations Board are 
        confirmed with the advice and consent of the Senate, in 
        accordance with clause 2 of section 2 of article II of the 
        Constitution, in a number sufficient to constitute a quorum, as 
        set forth in the National Labor Relations Act (29 U.S.C. 151 et 
        seq.);
          (2) the Supreme Court issues a decision on the 
        constitutionality of the appointments to the Board made in 
        January 2012; or
          (3) the adjournment sine die of the first session of the 
        113th Congress.

SEC. 4. EFFECT OF CERTAIN BOARD ACTIONS.

  In the event that this Act terminates pursuant to paragraphs (1) or 
(3) of section 3, no appointment, decision, rule, vote, or other action 
decided, undertaken, adopted, issued, or finalized by the Board on or 
after January 4, 2012, that requires authorization by not less than a 
quorum of the members of the Board, as set forth in the National Labor 
Relations Act, may be implemented, administered, or enforced unless and 
until it is considered and acted upon by a Board constituting a quorum, 
as set forth in the National Labor Relations Act, or the Supreme Court 
issues a decision on the constitutionality of the appointments to the 
Board made in January 2012.

H.R. 1120, PREVENTING GREATER UNCERTAINTY IN LABOR-MANAGEMENT RELATIONS 
                         ACT, COMMITTEE REPORT

                                PURPOSE

    On January 4, 2012, President Obama made three 
unprecedented recess appointments to the National Labor 
Relations Board (NLRB) while the Senate was regularly meeting 
in pro forma session. On January 25, 2013, the U.S. Court of 
Appeals for the District of Columbia held unanimously that 
President Obama's appointments were constitutionally invalid. 
H.R. 1120, the Preventing Greater Uncertainty in Labor-
Management Relations Act, narrowly seeks to prevent additional 
legal and economic uncertainty by prohibiting the NLRB from 
enforcing any action taken since January 4, 2012, or taking any 
further action, for which a Board quorum is required, until 
issues surrounding the current Board quorum are resolved.

                            COMMITTEE ACTION

Full committee hearing examining President Obama's January 2012 
        appointments to the NLRB

    On February 7, 2012, the Committee on Education and the 
Workforce held a hearing entitled, ``The NLRB Recess 
Appointments: Implications for America's Workers and 
Employers.'' Witnesses discussed the constitutionality and 
substantive consequences of President Obama's January 2012 
appointments to the NLRB while the Senate was regularly meeting 
in pro forma session. Witnesses before the panel included Mr. 
Charles J. Cooper, Chairman, Cooper & Kirk, PLLC, Washington, 
D.C.; Mr. Dennis M. Devaney, Member, Devaney, Jacob, Wilson, 
PLLC, Troy, Michigan; Mr. Stefan J. Marculewicz, Shareholder, 
Littler Mendelson P.C., Washington, D.C.; and Susan Davis, 
Partner, Cohen, Weiss and Simon LLP, New York, New York.

Joint subcommittee hearing discussing three pending controversial NLRA 
        issues affecting higher education

    On September 12, 2012, the Subcommittee on Health, 
Employment, Labor, and Pensions held a hearing entitled, 
``Expanding the Power of Big Labor: The NLRB's Growing 
Intrusion into Higher Education.'' Witnesses debated whether 
university graduate student assistants are statutory employees 
under the National Labor Relations Act (NLRA); whether 
university faculty are employees covered by the NLRA or 
excluded managers; and what the appropriate test is to 
determine whether a university is a religious institution 
exempt from NLRA coverage. Witnesses before the panel included 
Mr. Peter Weber, Dean, Brown University Graduate School, 
Providence, Rhode Island; Mr. Michael Moreland, Vice Dean and 
Professor of Law, Villanova University School of Law, 
Villanova, Pennsylvania; Mr. Walter Hunter, Shareholder, 
Littler Mendelson P.C., Providence, Rhode Island; and Mr. 
Christian Sweeney, Deputy Organizing Director, American 
Federation of Labor--Congress of Industrial Organizations, 
Washington, D.C.

Subcommittee hearing analyzing the implications of the Noel Canning v. 
        NLRB decision

    On February 13, 2013, the Subcommittee on Health, 
Employment, Labor, and Pensions held a hearing entitled, ``The 
Future of the NLRB: What Noel Canning v. NLRB Means for 
Workers, Employers, and Unions.'' Witnesses discussed recent 
controversial and precedent-changing NLRB holdings and the 
implications of the U.S. Court of Appeals for the District of 
Columbia's holding in Noel Canning v. NLRB. Witnesses before 
the panel included Mr. G. Roger King, Of Counsel, Jones Day, 
Columbus, Ohio; Mr. Raymond J. LaJeunesse, Jr., Vice President 
and Legal Director of the National Right to Work Legal Defense 
Foundation, Springfield, Virginia; Mr. Lawrence Z. Lorber, 
Partner, Proskauer, Washington, D.C.; and Ms. Elizabeth 
Reynolds, Shareholder, Allison, Slutsky & Kennedy P.C., 
Chicago, Illinois.

Legislation introduced

    On March 13, 2013, Congressman Phil Roe introduced H.R. 
1120, the Preventing Greater Uncertainty in Labor-Management 
Relations Act, with 12 cosponsors. Any Board order may be 
appealed to the U.S. Court of Appeals for the District of 
Columbia, and the Board does not maintain a constitutional 
quorum in that court. Therefore, no worker, union, or employer 
can have confidence in any order issued by the Board. This 
legislation was necessary to stop the Board from continuing to 
issue decisions or take other actions that could increase legal 
and economic uncertainty.

Committee passes H.R. 1120, the Preventing Greater Uncertainty in 
        Labor-Management Relations Act

    On March 20, 2013, the Committee on Education and the 
Workforce considered H.R. 1120, the Preventing Greater 
Uncertainty in Labor-Management Relations Act. Congressman Roe 
offered an amendment in the nature of a substitute, clarifying 
that the Board may not appoint any individuals whose 
appointments require a quorum of the Board. Two additional 
amendments were offered; however, neither was adopted. The 
committee favorably reported H.R. 1120, as amended, to the 
House of Representatives by a vote of 23-15.

                                SUMMARY

    The Preventing Greater Uncertainty in Labor-Management 
Relations Act addresses the legal and economic uncertainty 
caused by the Board's continued operation by prohibiting the 
NLRB from enforcing any action taken since January 4, 2012, or 
taking any further action, for which a Board quorum is 
required, until the issues with the current Board quorum are 
resolved.

                            COMMITTEE VIEWS

    The NLRA, signed into law in 1935, guarantees the right of 
most private-sector employees\1\ to organize and bargain 
collectively with employers through representatives of their 
choosing, and to refrain from any and all such activities. The 
NLRB, an independent federal agency, was created by the NLRA to 
fulfill two principal functions: 1) determine whether employees 
wish to be represented by a union; and 2) prevent and remedy 
employer and union unlawful acts (called unfair labor practices 
or ULPs).
---------------------------------------------------------------------------
    \1\The NLRA does not cover all employees and employers in the 
United States. For example, public sector employers (state, local, and 
federal employees), employers covered by the Railway Labor Act 
(airlines and railroads), agricultural labor, and supervisors are not 
covered by the act. 29 U.S.C. 152(2).
---------------------------------------------------------------------------
    The NLRB has two components: the Board and the General 
Counsel. The Board is a quasi-judicial five member body, 
traditionally consisting of three individuals from the 
president's party and two from the opposing party, appointed by 
the president and confirmed by the Senate to staggered five-
year terms. The Board decides cases under the NLRA based on 
formal records in administrative proceedings (subject to review 
in the U.S. Court of Appeals), conducts secret ballot elections 
to determine whether employees want to be represented by a 
union, and promulgates rules to carry out the provisions of the 
NLRA. A Board quorum consisting of three members is required 
for the Board to issue decisions, promulgate regulations, and 
appoint regional directors. NLRB regional functions, including 
the acceptance and processing of representation petitions, 
certification of representational elections, and issuance of 
unfair labor practice complaints, are unaffected by a lack of a 
Board quorum.
    On January 4, 2012, relying on a new legal opinion by the 
Justice Department, President Obama made three unprecedented 
recess appointments to the NLRB (Democrats Sharon Block and 
Richard Griffin, and Republican Terence Flynn) while the Senate 
was breaking up a long recess with periodic pro forma sessions. 
Since January 4, 2012, the Board has issued approximately 600 
decisions. Many of these decisions are highly controversial and 
have in some cases reversed precedent. Among other things, the 
Board created new bargaining requirements before an employer 
can enforce discretionary discipline, reversed longstanding 
dues-checkoff rules, expanded the scope of concerted activity, 
virtually eliminated employee ``Beck'' rights related to 
lobbying expenses, and rewrote rules governing witness 
statements taken during an employer investigation.
    On January 25, 2013, in Noel Canning v. NLRB (Noel 
Canning), the U.S. Court of Appeals for the District of 
Columbia unanimously held that because the appointments of 
Members Block and Griffin were constitutionally invalid the 
Board lacked a quorum to issue decisions. As a result of the 
Noel Canning decision, every action taken by the Board that 
relied on intrasession recess\2\ appointments to constitute a 
Board quorum is now in question. Employers, employees, and 
unions are in legal limbo, struggling with uncertainty as to 
the enforceability of Board orders--injecting greater 
uncertainty in a struggling economy.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \3\Hamilton, Alexander, The Federalist Papers No. 67 (March 11, 
1788).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \4\Id.
    \5\Id.
---------------------------------------------------------------------------
    The earliest disagreements as to limits of the Recess 
Appointment Clause focused on the interpretation of the term 
``happen.'' Originally it was understood that the president 
could only make recess appointments to vacancies that occurred 
during the recess.\6\ In 1792, Edmund Randolph, the first 
Attorney General, examined whether a newly created position 
could be filled by a recess appointment.\7\ The statute 
establishing the new position was enacted in April 1792, while 
the Senate was in session, however, when the Senate recessed in 
May there was no nomination.\8\ Attorney General Randolph 
concluded that the vacancy happened on the day the office was 
created; therefore, it could not be filled with a recess 
appointment.\9\ Alexander Hamilton, then a Major General in the 
United State Army, agreed with Attorney General Randolph's 
interpretation, stating in a similar situation that ``It is 
clear . . . the President cannot fill a vacancy which happens 
during a session of the Senate.''\10\ Additionally, there is 
evidence President George Washington and Congress agreed with 
this interpretation.\11\
---------------------------------------------------------------------------
    \6\Rappaport, Michael B., The Original Meaning of the Recess 
Appointments Clause, 52 UCLA L. Rev. 1487, 1518 (2005).
    \7\Id. at 1518-9, describing Edmund Randolph, Opinion on Recess 
Appointments (July 7, 1792), in 24 The Papers of Thomas Jefferson, at 
165-67 (John Catanzariti et al. ed., 1990).
    \8\Id.
    \9\Id.
    \10\Id. at 1520, quoting Letter from Alexander Hamilton to James 
McHenry, at 94.
    \11\See Rappaport, Michael B., The Original Meaning of the Recess 
Appointments Clause, 52 UCLA L. Rev. 1487, 1518 (2005).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \19\Rappaport, Michael B., The Original Meaning of the Recess 
Appointments Clause, 52 UCLA L. Rev. 1487, 1573 (2005).
    \20\13 Op. O.L.C. 271, 272 (quoting 33 Op. Att'y Gen. 20, 24 
(1921)).
    \21\Hogue, Henry B., Recess Appointments: Frequently Asked 
Questions, Congressional Research Service, 10 (January 9, 2012).
    \22\See Stephens v. Evans, 387 F.3d 1220 (11th Cir. 2004), United 
States v. Woodley, 751 F.2d 1008 (9th Cir. 1985), United States v. 
Allocco, 305 F.2d 704 (2d Cir. 1962), and Noel Canning v. NLRB, No. 12-
1115, slip. Op. (D.C. Cir 2013).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \23\Hogue, Henry B., Recess Appointments: Frequently Asked 
Questions, Congressional Research Service, 10 (January 9, 2012).
    \24\Sen. Harry Reid, ``Recess Appointments,'' remarks in the 
Senate, Congressional Record, daily edition, vol. 153 (November 16, 
2007), p. S14609.
    \25\Hogue, Henry B., Recess Appointments: Frequently Asked 
Questions, Congressional Research Service, 10 (January 9, 2012).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------
    \29\Memorandum Opinion for the Counsel to the President at 1, from 
Virginia A. Seitz, Assistant Attorney General, Office of Legal Counsel, 
Re: Lawfulness of Recess Appointments During a Recess of the Senate 
Notwithstanding Periodic Pro Forma Sessions, at 1 (January 6, 2012).
    \30\Id.
---------------------------------------------------------------------------
    Despite the fact that the Senate, days before the 
appointments, passed the Temporary Payroll Tax Cut Continuation 
Act of 2011 and gaveled in the 112th Congress by unanimous 
consent\31\ during a pro forma session, in the opinion of the 
OLC pro forma sessions ``do not interrupt the intrasession 
recess in a manner that would preclude the President from 
determining that the Senate remains unavailable throughout to 
receive communications from the President or participate as a 
body in making appointments.'''\32\ The OLC avoided the issue 
as to the number of days needed to constitute a recess by 
finding that a pro forma session did not break up a recess.\33\ 
However, even the OLC admitted the question as to whether the 
president may make recess appointments during a recess broken 
up by pro forma sessions is a ``novel one, and the substantial 
arguments on each side create some litigation risk for such 
appointments.''\34\
---------------------------------------------------------------------------
    \31\``Most nominations are brought up by unanimous consent and 
approved without objection.'' Rybicki, Elizabeth, Senate Consideration 
of Presidential Nominations, Committee and Floor Procedure, 
Congressional Research Service, 9 (2011).
    \32\Memorandum Opinion for the Counsel to the President at 1, from 
Virginia A. Seitz, Assistant Attorney General, Office of Legal Counsel, 
Re: Lawfulness of Recess Appointments During a Recess of the Senate 
Notwithstanding Periodic Pro Forma Sessions, at 1 (January 6, 2012), 
quoting Executive Power--Recess Appointments, 33 Op. Att'y Gen. 20, 24 
(1921).
    \33\Id. at 13.
    \34\Id. at 4.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \35\Meese, Edwin, and Todd Gaziano, Obama's Recess Appointments are 
Unconstitutional, The Heritage Foundation (January 5, 2012).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \36\The NLRB Recess Appointments: Implications for America's 
Workers and Employers, Hearing before the Education and the Workforce 
Committee, 112th Cong., 2nd Sess. at 9 (2012) (written testimony of 
Charles Cooper) [hereinafter Cooper Testimony].
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------

                          Noel Canning v. NLRB

    On February 24, 2012, Noel Canning, a division of Noel 
Corporation, filed a petition for review and to set aside a 
NLRB order in the U.S. Court of Appeals for the District of 
Columbia.\38\ Noel Canning argued the January 2012 recess 
appointments to the NLRB were unconstitutional, therefore, 
``the Board lacked authority to act for want of a quorum.''\39\ 
The U.S. Chamber of Commerce and the Coalition for a Democratic 
Workplace intervened in support of the employer. Republican 
Senators and Speaker John Boehner filed amicus briefs in the 
case, arguing the appointments were unconstitutional.
---------------------------------------------------------------------------
    \38\Noel Canning v. NLRB, No. 12-1115, slip. Op., 3 (D.C. Cir 
2013).
    \39\Id. at 3.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \40\Id. at 30.
    \41\Id. at 17, 30.
    \42\Id. at 17.
    \43\Id. at 44.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \44\Dube, Lawrence E., NLRB Officials Describe Efforts to Stay 
Ahead of Noel Canning and Looming Sequestration, Daily Labor Report 
(February 27, 2013).
    \45\Statement by Chairman Pearce on recess appointment ruling, NLRB 
(January 25, 2013), available at http://www.nlrb.gov/news/statement-
chairman-pearce-recess-appointment-ruling.
    \46\Id.
---------------------------------------------------------------------------

         Labor Relations Uncertainty: The Need for Legislation

    The U.S. Court of Appeals for the District of Columbia's 
holding in Noel Canning has far-reaching implications on the 
validity of all intrasession recess appointments that must 
ultimately be settled by the Supreme Court. In the meantime, it 
is being used as controlling authority to invalidate decisions 
issued by the current Board. Only three things are certain: 
decisions issued by the current Board cannot be relied upon, 
every losing party will be justified in filing an appeal, and 
no prevailing party can be assured they will ever benefit from 
a Board-ordered remedy. The Board's continued operation will 
only perpetuate confusion and completely frustrate labor 
relations stability. This uncertainty is not what the NLRA 
anticipated and cannot be permitted.
    Under the NLRA, ``any person aggrieved by a final order of 
the Board . . . may obtain a review of such order in any United 
States court of appeals in the circuit wherein the unfair labor 
practice in question was alleged to have been engaged in or . . 
. in the United State Court of Appeals for the District of 
Columbia [emphasis added].''\47\ In other words, unlike other 
courts of appeals, aggrieved parties can always appeal a Board 
order to the U.S. Court of Appeals for the District of 
Columbia.
---------------------------------------------------------------------------
    \47\29 U.S.C. 160(f).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \48\Maxwell v. Snow, 409 F.3d 354, 358 (D.C. Cir. 2005). See also 
Brewster v. Commissioner, 607 F.2d 1369, 1373 (D.C. Cir. 1979).
    \49\Id.
    \50\NLRB v. Curtin Matheson Scientific, Inc., 494 U.S. 775, 775 
(1990).
    \51\The NLRB Recess Appointments: Implications for America's 
Workers and Employers, Hearing before the Education and the Workforce 
Committee, 112th Cong., 2nd Sess. at 3 (2012) (written testimony of 
Dennis Devaney) [hereinafter Devaney Testimony].
---------------------------------------------------------------------------
    Ultimately, employees, unions, and employers will be forced 
to endure costly litigation to overturn the Board's orders and 
taxpayer funds will be wasted in the defense of the Board's 
orders. At a February 2012 Education and the Workforce 
Committee hearing, Stefan Marculewicz, a management side 
attorney with Littler Mendelson, P.C., testified regarding the 
difficult situation in which employers find themselves:

          Companies trying to comply with the law will face a 
        dilemma of whether to comply with decisions issued by 
        this Board or refuse to do so. For many, waging a 
        lengthy legal battle will prove too costly in time, 
        money and other resources to justify the expenditure. 
        Many employers will simply comply. However, if the law 
        created by this Board is ultimately annulled in the 
        courts, it will be very difficult indeed to pick up the 
        pieces.\52\
---------------------------------------------------------------------------
    \52\The NLRB Recess Appointments: Implications for America's 
Workers and Employers, Hearing before the Education and the Workforce 
Committee, 112th Cong., 2nd Sess. at 3 (2012) (written testimony of 
Stefan Marculewicz) [hereinafter Marculewicz Testimony].

    While not a perfect analogy, the events surrounding New 
Process Steel, L.P. v. NLRB (New Process Steel) provide some 
idea of the instability caused by the Board's continued 
operation. Over 27 months, starting in 2008, the NLRB issued 
approximately 600 rulings in unfair labor practice and 
representation cases with only two members.\53\ With one 
Democrat member and one Republican member, the Board was 
largely limited to areas of settled law. While the decisions 
were largely noncontroversial, almost 100 appeals were filed 
with the federal appeals courts challenging the two-member 
Board's authority to issue decisions.\54\ On June 18, 2010 in 
New Process Steel, the Supreme Court held that the NLRB must 
maintain a membership of at least three members to constitute a 
quorum.\55\ All decisions issued by the two-member Board were 
overturned and nearly 100 cases were remanded from federal 
court to the Board. For nearly two years, employers were forced 
to comply with Board decisions that were ultimately overturned.
---------------------------------------------------------------------------
    \53\New Process Steel v. NLRB, 130 S. Ct. 2635, 2639 (2010).
    \54\Kaplan, Roger, Board Begins Review of Cases in Light of New 
Process Steel Remands, Union & Labor Law Review (August 9, 2010), 
available at http://www.efcablog.com/2010/08/articles/nlrb/board-
begins-review-of-cases-in-light-of-new-process-steel-remands/.
    \55\New Process Steel v. NLRB, 130 S. Ct. at 2635.
---------------------------------------------------------------------------
    As noted above, unlike the relatively benign decisions 
overturned by New Process Steel, many of the Board decisions 
issued over the past year are highly controversial and have in 
some cases overturned longstanding Board precedent. In 
testimony before the Education and the Workforce Committee, 
Roger King, Of Counsel at the Jones Day law firm, stated that 
``the current Board has exercised no restraint and indeed has 
pursued an aggressive agenda of overturning decades of 
precedent and greatly expanding the reach of the Act . . . 
rais[ing] significant public policy issues regarding how our 
nation's labor policy should be established and labor laws 
should be enforced.''\56\ The enforceability of these and any 
future decisions is in limbo. At least 38 cases, filed by 
employers, unions, and employees, are being held in abeyance in 
the U.S. Court of Appeals for the District of Columbia 
alone.\57\ However, challenges to NLRB actions are not limited 
to the federal court. The actions of NLRB regional directors 
and NLRB administrative law judges are being challenged based 
on Noel Canning.\58\
---------------------------------------------------------------------------
    \56\The Future of the NLRB: What Noel Canning vs. NLRB Means for 
Workers, Employers, and Unions, 113th Cong., 1st Sess. at 4 (2013) 
(written testimony of G. Roger King) [hereinafter King Testimony].
    \57\Recess Appointments Litigation Resource Page, National Chamber 
Litigation Center, available at http://www.chamberlitigation.com/
recess-appointments-litigation-resource-page (last visited on March 26, 
2013).
    \58\Dude, Lawrence E., NLRB Officials Describe Efforts to Stay 
Ahead of Noel Canning and Looming Sequestration, Daily Labor Report 
(February 27, 2013).
---------------------------------------------------------------------------
    As the U.S. Supreme Court has recognized, achieving labor 
relations stability was the ``primary objective of Congress in 
enacting the National Labor Relations Act.''\59\ The Board's 
continued operation in the wake of Noel Canning will only 
perpetuate confusion and completely frustrate the stability of 
labor relations. Additionally, former Board Member Devaney 
underscored that ``uncertainty created by questions about the 
legality and authority of these appointments will further 
contribute to doubts about the agency and its mission.''\60\ 
Board decisions govern virtually every private workplace across 
the country, affecting the lives of millions of workers and 
employers. Greater uncertainty will only exacerbate the jobs 
crisis plaguing the nation. Given the significance of these 
circumstances, the Education and the Workforce Committee was 
compelled to consider and approve H.R. 1120, the Preventing 
Greater Uncertainty in Labor-Management Relations Act.
---------------------------------------------------------------------------
    \59\Colgate-Palmolive-Peet Co. v. NLRB, 338 U.S. 355, 362-3 (1949).
    \60\Devaney Testimony at 3.
---------------------------------------------------------------------------

                               Conclusion

    To prevent greater uncertainty in the struggling economy, 
Congressman Roe introduced and the House Education and the 
Workforce Committee passed H.R. 1120, the Preventing Greater 
Uncertainty in Labor-Management Relations Act. The act 
prohibits the NLRB from enforcing any action taken since 
January 4, 2012, or taking any further action, for which a 
Board quorum is required, until issues with the current Board 
are resolved. While the administration has announced that it 
will appeal the Noel Canning decision to the Supreme Court, to 
date, no writ of certiorari has been filed.\61\ Additionally, 
the president has apparently elected not to work cooperatively 
with Democratic and Republican Senators to nominate and confirm 
individuals to the NLRB, choosing instead to nominate the same 
individuals--Sharon Block and Richard Griffin--whose previous 
appointments spurred the current legal controversy. In the 
meantime, the Board continues to take actions that are subject 
to appeal in a court that does not recognize the Board quorum, 
thus putting those actions--and the workers, employers, and 
unions affected by them--in legal limbo. In short, the Board's 
continued action is inconsistent with the National Labor 
Relations Act. Moreover, it is destructive to the economy. The 
Preventing Greater Uncertainty in Labor-Management Relations 
Act is essential to force the Board to stop taking actions that 
increase legal uncertainty and ultimately hurt the economy.
---------------------------------------------------------------------------
    \61\NLRB To Seek Supreme Court Review in Noel Canning v. NLRB, 
National Labor Relations Board (March 12, 2013), available at http://
nlrb.gov/news-outreach/news-releases/nlrb-seek-supreme-court-review-
noel-canning-v-nlrb (last visited on March 26, 2013).
---------------------------------------------------------------------------

                      SECTION-BY-SECTION ANALYSIS

    Section 1. Provides that the short title is the 
``Preventing Greater Uncertainty in Labor-Management Relations 
Act.''
    Section 2. Prevents the NLRB from engaging in any activity 
requiring a quorum (3 members) of the Board and forbids the 
NLRB from enforcing any action that required a Board quorum, 
taken on or after January 4, 2012, until one of the 
legislation's sunset provisions, found in section 3, is met.
    Section 3. Provides three circumstances under which 
restrictions on future actions of the Board are lifted: 1) all 
members of the NLRB are confirmed by the U.S. Senate in a 
number sufficient to constitute a quorum; 2) the U.S. Supreme 
Court determines the constitutionality of the January 2012 
recess appointments; or 3) the first session of the 113th 
Congress adjourns (the date upon which the January 2012 recess 
appointments end).
    Section 4. Ensures that the Board does not enforce actions 
that relied upon the January 2012 recess appointments to 
constitute a quorum without review and approval by a 
constitutionally appointed Board quorum or a decision on the 
constitutionality of the January 2012 recess appointments from 
the U.S. Supreme Court.

                       EXPLANATION OF AMENDMENTS

    The amendments, including the amendment in the nature of a 
substitute, are explained in the body of this report.

              APPLICATION OF LAW TO THE LEGISLATIVE BRANCH

    Section 102(b)(3) of Public Law 104-1 requires a 
description of the application of this bill to the legislative 
branch. H.R. 1120 prohibits the NLRB from enforcing any action 
taken since January 4, 2012, or taking any further action, for 
which a Board quorum is required, until issues surrounding the 
current Board quorum are resolved.

                       UNFUNDED MANDATE STATEMENT

    Section 423 of the Congressional Budget and Impoundment 
Control Act (as amended by Section 101(a)(2) of the Unfunded 
Mandates Reform Act, P.L. 104-4) requires a statement of 
whether the provisions of the reported bill include unfunded 
mandates. This issue is addressed in the CBO letter.

                           EARMARK STATEMENT

    H.R. 1120 does not contain any congressional earmarks, 
limited tax benefits, or limited tariff benefits as defined in 
clause 9 of House Rule XXI.

                            ROLL CALL VOTES

    Clause 3(b) of rule XIII of the Rules of the House of 
Representatives requires the Committee Report to include for 
each record vote on a motion to report the measure or matter 
and on any amendments offered to the measure or matter the 
total number of votes for and against and the names of the 
Members voting for and against.

         STATEMENT OF GENERAL PERFORMANCE GOALS AND OBJECTIVES

    In accordance with clause (3)(c) of House Rule XIII, the 
goal of H.R. 1120 is to prohibit the NLRB from enforcing any 
action taken since January 4, 2012, or taking any further 
action, for which a Board quorum is required, until issues 
surrounding the current Board quorum are resolved. The 
Committee expects the NLRB to comply with these provisions and 
implement the changes to the law in accordance with these 
stated goals.

                    DUPLICATION OF FEDERAL PROGRAMS

    No provision of H.R. 1120 establishes or reauthorizes a 
program of the Federal Government known to be duplicative of 
another Federal program, a program that was included in any 
report from the Government Accountability Office to Congress 
pursuant to section 21 of Public Law 111-139, or a program 
related to a program identified in the most recent Catalog of 
Federal Domestic Assistance.

                  DISCLOSURE OF DIRECTED RULE MAKINGS

    The committee estimates that enacting H.R. 1120 does not 
specifically direct the completion of any specific rule makings 
within the meaning of 5 U.S.C. 551.

  STATEMENT OF OVERSIGHT FINDINGS AND RECOMMENDATIONS OF THE COMMITTEE

    In compliance with clause 3(c)(1) of rule XIII and clause 
2(b)(1) of rule X of the Rules of the House of Representatives, 
the Committee's oversight findings and recommendations are 
reflected in the body of this report.

               NEW BUDGET AUTHORITY AND CBO COST ESTIMATE

    With respect to the requirements of clause 3(c)(2) of rule 
XIII of the Rules of the House of Representatives and section 
308(a) of the Congressional Budget Act of 1974 and with respect 
to requirements of clause 3(c)(3) of rule XIII of the Rules of 
the House of Representatives and section 402 of the 
Congressional Budget Act of 1974, the Committee has received 
the following estimate for H.R. 1120 from the Director of the 
Congressional Budget Office:

                                     U.S. Congress,
                               Congressional Budget Office,
                                    Washington, DC, March 21, 2013.
Hon. John Kline, Chairman,
Committee on Education and the Workforce,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 1120, the 
Preventing Greater Uncertainty in Labor-Management Relations 
Act.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Christina 
Hawley Anthony.
            Sincerely,
                                      Douglas W. Elmendorf,
                                                          Director.
    Enclosure.

H.R. 1120--Preventing Greater Uncertainty in Labor-Management Relations 
        Act

    H.R. 1120 would prohibit the National Labor Relations Board 
from undertaking activity that requires a quorum of the members 
of the Board. Further, the bill would prohibit the Board from 
implementing, administering, or enforcing any decisions 
finalized on or after January 4, 2012. Those prohibitions would 
terminate when either all members for the Board are confirmed 
by the Senate in a number sufficient to constitute a quorum, 
when the Supreme Court issues a decision as to the 
constitutionality of the appointments made to the Board in 
January 2012, or when the first session of the 113th Congress 
adjourns sine die.
    Enacting H.R. 1120 would not affect direct spending or 
revenues; therefore, pay-as-you-go procedures do not apply. 
H.R. 1120 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act.
    The CBO staff contact for this estimate is Christina Hawley 
Anthony. The estimate was approved by Peter H. Fontaine, 
Assistant Director for Budget Analysis.

                        COMMITTEE COST ESTIMATE

    Clause 3(d)(1) of rule XIII of the Rules of the House of 
Representatives requires an estimate and a comparison of the 
costs that would be incurred in carrying out H.R. 1120. 
However, clause 3(d)(2)(B) of that rule provides that this 
requirement does not apply when the Committee has included in 
its report a timely submitted cost estimate of the bill 
prepared by the Director of the Congressional Budget Office 
under section 402 of the Congressional Budget Act.

                             MINORITY VIEWS

  H.R. 1120, ``THE PREVENTING GREATER UNCERTAINTY IN LABOR-MANAGEMENT 
                            RELATIONS ACT''

                      113TH CONGRESS, 1ST SESSION

                             APRIL 3, 2013

    Committee Democrats oppose H.R. 1120. This legislation 
requires the National Labor Relations Board (``NLRB'' or 
``Board'') to cease all activity that requires a quorum of 
Board members. H.R. 1120 shuts down the NLRB, rendering 
critical rights and protections afforded workers and employers 
under the National Labor Relations Act (``NLRA'') 
unenforceable. A right without a remedy is no right at all. 
This legislation allows a party to ignore election results. It 
leaves workers, unions, and employers alike vulnerable to 
unfair labor practices. By throwing yet another wrench into the 
NLRB processes, it creates new uncertainty and instability in 
labor-management relations and our economy generally.
    Committee Republicans introduced H.R. 1120 and voted it out 
of Committee in less than five legislative days. Not a single 
hearing was held on the bill. There was no opportunity to 
examine the implications of H.R. 1120, no objective assessments 
by any experts, and no evaluation of the impact on the millions 
of workers and employers who will be affected by this 
legislation.
    H.R. 1120 will be devastating to workers and employers. It 
will frustrate workers' right to organize, shutting down 
elections altogether or allowing an incumbent party to simply 
ignore the election results or force ballots to go uncounted. 
It promotes strikes as the only viable means of addressing 
unfair labor practices. It makes it impossible for workers 
illegally fired for exercising their NLRA rights to actually 
get their jobs back in many regions. It makes it highly 
unlikely that they will in other regions. It creates an 
incentive for frivolous appeals and litigation. It enables 
employers to unlawfully ship jobs overseas. During the 
Committee mark-up, Democratic members questioned the impact 
H.R. 1120 will have on these issues to no avail.
    This legislation is also an attack on Presidential 
appointment power. Presidents have recess appointed hundreds of 
individuals to positions at various agencies and throughout the 
federal courts. Contrary to Committee Republicans' politicized 
view of President Obama's appointment of Sharon Block, Richard 
Griffin, and Terrence Flynn, these appointments were within the 
long standing interpretation of the President's Constitutional 
Appointment power and necessary to keep a critical agency 
functioning in the face of Republican obstructionism.
    This Committee has important work to do to rebuild the 
middle class. Instead of working to ensure Americans have good 
jobs, protecting workers' pensions and retirement security, 
raising the minimum wage, and dealing with issues of 
discrimination in employment, Committee Republicans have 
decided to continue to use Committee time and resources to 
advance an anti-worker agenda. H.R. 1120 demonstrates that a 
top priority for Committee Republicans is to rush politically 
motivated legislation to the floor that eviscerates the rights 
of workers to organize and collectively bargain.

          HOUSE REPUBLICANS' UNPRECEDENTED ASSAULT ON THE NLRB

    House Republicans have committed unprecedented resources to 
attacking the NLRB. These attacks come at a telling time. In 
2012, 7 million private sector workers belonged to a union, 
while the number of unemployed workers remained above 12 
million. Adding in the underemployed nets 25 million workers 
looking for decent jobs. Yet, rather than working to help 
create jobs or find people meaningful employment, House 
Republicans' focus has been on attacking the small sliver of 
the workforce that is not only employed but consistently earns 
higher wages and benefits than its non-union counterparts. For 
political and ideological reasons, attacking organizations that 
secure jobs for workers with decent pay and benefits, or the 
agency that administers and enforces the rights of these 
workers, is a top priority of the House Republicans. This is 
tragic, and its utter counterproductivity is one of the many 
reasons why the American people view Congress so unfavorably.
    Last Congress, one of the first legislative items House 
Republicans considered included an amendment to shut down the 
NLRB. Committee Republican Tom Price offered Amendment 410 to 
H.R. 1, the fiscal year (FY) 2011 spending bill, to defund the 
NLRB and shut it down completely.\1\ Representative Rosa 
DeLauro (D-CT) characterized the amendment as ``a step backward 
for democracy.''\2\ A majority of the Republican caucus voted 
in favor of the amendment, including HELP Subcommittee Chairman 
Roe, sponsor of H.R. 1120. Democrats unanimously opposed the 
amendment, and it failed.\3\
---------------------------------------------------------------------------
    \1\Available at http://www.thomas.gov/cgi-bin/bdquery/D?d112:54:./
temp/bdy3W8::.
    \2\Available at http://www.gpo.gov/fdsys/pkg/CREC-2011-02-16/pdf/
CREC-2011-02-16-pt1-PgH957-2.pdf#page=1 at H1031.
    \3\Available at http://clerk.house.gov/evs/2011/roll075.xml.
---------------------------------------------------------------------------
    Additional attacks on the NLRB include: a budget that would 
have forced the Board to furlough all of its employees for much 
of FY 2011, a bill to remove all prosecutorial and rulemaking 
authority from the Board, and a bill that would abolish the 
NLRB completely, shifting its current authority to other 
agencies.\4\ The FY 2012 spending bill, H.R. 3070, included 
various provisions aimed at defunding the NLRB's rulemaking and 
enforcement authority. These include the:
---------------------------------------------------------------------------
    \4\H.R. 2926, available at http://thomas.loc.gov/cgi-bin/query/
z?c112:H.R.2926.
---------------------------------------------------------------------------
     LProhibition of funding used to develop, 
implement, and enforce rules.
     LProhibition on funding to enforce the NLRB's 
Specialty Healthcare decision.
     LProhibition on funding to enforce the NLRB's 
Lamon's Gasket decision.
    Republicans also included several riders to other FY 2012 
House Appropriations bills.
     LA rider to H.R. 2055 (Military Construction and 
Veterans' Affairs spending measure) prohibiting funding for the 
development, implementation, and enforcement of rules relating 
to electronic voting in elections.
     LA rider to H.R. 5326 (Commerce Justice and 
Science spending measure) eliminating funding for the NLRB's 
prosecutorial authority to litigate against states enacting 
laws in violation of the NLRA.
    Since gaining control of the House, Committee on Education 
and the Workforce Republicans have held no fewer than nine 
hearings attacking the NLRB.
        1.  Feb. 11, 2011: Emerging Trends at the National 
        Labor Relations Board\5\
---------------------------------------------------------------------------
    \5\Available at http://edworkforce.house.gov/Calendar/
EventSingle.aspx?EventID=223394.
---------------------------------------------------------------------------
        2.  May 26, 2011: Corporate Campaigns and the NLRB: The 
        Impact of Union Pressure on Job Creation\6\
---------------------------------------------------------------------------
    \6\Available at http://edworkforce.house.gov/Calendar/
EventSingle.aspx?EventID=242129.
---------------------------------------------------------------------------
        3.  July 7, 2011: Rushing Union Elections: Protecting 
        the Interests of Big Labor at the Expense of Workers' 
        Free Choice\7\
---------------------------------------------------------------------------
    \7\Available at http://edworkforce.house.gov/Calendar/
EventSingle.aspx?EventID=249459.
---------------------------------------------------------------------------
        4.  Sep. 22, 2011: Culture of Union Favoritism: Recent 
        Actions of the National Labor Relations Board\8\
---------------------------------------------------------------------------
    \8\Available at http://edworkforce.house.gov/Calendar/
EventSingle.aspx?EventID=260180.
---------------------------------------------------------------------------
        5.  Oct. 12, 2011: H.R. 3094, Workforce Democracy and 
        Fairness Act\9\
---------------------------------------------------------------------------
    \9\Available at http://edworkforce.house.gov/calendar/
eventsingle.aspx?EventID=263036.
---------------------------------------------------------------------------
        6.  Feb. 7, 2012: The NLRB Recess Appointments: 
        Implications for America's Workers and Employers\10\
---------------------------------------------------------------------------
    \10\Available at http://edworkforce.house.gov/calendar/
eventsingle.aspx?EventID=277173.
---------------------------------------------------------------------------
        7.  July 25, 2012: Examining Proposal to Strengthen the 
        National Labor Relations Act\11\
---------------------------------------------------------------------------
    \11\Available at http://edworkforce.house.gov/calendar/
eventsingle.aspx?EventID=303444.
---------------------------------------------------------------------------
        8.  Sep. 12, 2012: Expanding the Power of Big Labor: 
        The NLRB's Growing Intrusion into Higher Education\12\
---------------------------------------------------------------------------
    \12\Available at http://edworkforce.house.gov/calendar/
eventsingle.aspx?EventID=307454.
---------------------------------------------------------------------------
        9.  Feb. 11, 2013: The Future of the National Labor 
        Relations Board (NLRB): What Noel Canning v. NLRB Means 
        for Workers, Employers, and Unions\13\
---------------------------------------------------------------------------
    \13\Available at http://edworkforce.house.gov/calendar/
eventsingle.aspx?EventID=319410.
---------------------------------------------------------------------------
    In addition, other Committees have held hearings attacking 
the NLRB. These include:

House Committee on Appropriations

        10.  Apr. 6, 2011: Budget Hearing--National Labor 
        Relations Board--Chairman and Acting General 
        Counsel\14\
---------------------------------------------------------------------------
    \14\Available at http://appropriations.house.gov/Calendar/
EventSingle.aspx?EventID=236067.
---------------------------------------------------------------------------

House Committee on Oversight and Government Reform

          11.  June 17, 2011: Unionization Through Regulation: 
        The NLRB's Holding Pattern on Free Enterprise\15\
---------------------------------------------------------------------------
    \15\Available at http://oversight.house.gov/index.php?option=com_ 
content&view=article&id=1339%3A6-17-11-qunionization-through-
regulation-the-nrlbs-holding-pattern-on-free-
enterpriseq&catid=12&Itemid=1.
---------------------------------------------------------------------------
          12.  Feb. 1, 2012: Uncharted Territory: What are the 
        Consequences of President Obama's Unprecedented 
        'Recess' Appointments?\16\
---------------------------------------------------------------------------
    \16\Available at http://oversight.house.gov/wp-content/uploads/
2012/06/02-01-12-Full-Committee-Hearing-Transcript.pdf.
---------------------------------------------------------------------------

House Committee on Small Business

          13.  Oct. 5, 2011: Adding to Uncertainty: The Impact 
        of DOL/NLRB Decisions and Proposed Rules on Small 
        Businesses\17\
---------------------------------------------------------------------------
    \17\Available at http://smallbusiness.house.gov/Calendar/
EventSingle.aspx?EventID=262090.
---------------------------------------------------------------------------
    In addition to these hearings, the Committee also reported 
out two anti-worker bills that went on to pass the House. H.R. 
2587, the Protecting Jobs from Government Interference Act, 
also referred to as the ``Job Outsourcer's Bill of Rights,'' 
stripped the NLRB of its authority to order an employer to 
restore work to the U.S. that had been illegally outsourced in 
violation of the NLRA.\18\ Under H.R. 2587, an employer could 
retaliate against an organizing drive by shipping jobs to 
Mexico or China, and the NLRB would have no authority to order 
the jobs back to the U.S. In 2000, the NLRB ordered an employer 
to bring jobs back from Mexico after it closed a portion of its 
California plant and moved the jobs to Tijuana after U.S. 
workers successfully organized a union. With H.R. 2587, 
Republicans have enabled the employer to outsource those jobs. 
H.R. 2587 made it easier than ever to ship jobs overseas.\19\ 
This bill passed by 238-186 with an overwhelming 230 supporting 
votes from the Republican caucus.\20\
---------------------------------------------------------------------------
    \18\Available at http://www.govtrack.us/congress/
billtext.xpd?bill=h112-2587.
    \19\Available at http://democrats.edworkforce.house.gov/blog/gops-
job-outsourcers%E2%80%99-bill-rights-facts-hr-2587.
    \20\Available at http://clerk.house.gov/evs/2011/roll711.xml.
---------------------------------------------------------------------------
    Another House-passed and Republican-sponsored bill, H.R. 
3094, the Workforce Democracy and Fairness Act, more 
appropriately referred to as the ``Election Prevention Act,'' 
would frustrate workers' attempts to hold elections for union 
representation.\21\ The legislation mandated arbitrary delays 
in any worker petition for a union election. For instance, no 
election could occur sooner than 35 days after the filing of a 
petition.\22\ However, there was no limit on how long an 
election might be delayed.\23\ H.R. 3094 enables unscrupulous 
employers to pressure employees into abandoning their 
organizing efforts.\24\ This bill, sponsored by Committee 
Chairman John Kline, passed 235-188 with a majority of 
Republicans supporting it.\25\
---------------------------------------------------------------------------
    \21\Available at http://www.govtrack.us/congress/
bill.xpd?bill=h112-3094.
    \22\Available at http://democrats.edworkforce.house.gov/blog/facts-
republicans-hr-3094-election-prevention-act.
    \23\Id.
    \24\Id.
    \25\Available at http://clerk.house.gov/evs/2011/roll869.xml.
---------------------------------------------------------------------------

        A FUNCTIONING NLRB IS KEY TO PROTECTING WORKERS' RIGHTS

    For more than 75 years, the National Labor Relations Act 
(NLRA) has provided Americans the right to band together in 
unions and bargain for a better life. From the beginning, the 
National Labor Relations Board has administered and enforced 
this law on behalf of workers and employers. Under the law, it 
is illegal to retaliate against workers for exercising their 
rights. These decades-old rights include the right to strike or 
the right to form or join a union or even to simply sign a 
petition asking for a raise or better safety equipment.
    The freedom to organize and collectively bargain depends 
upon the effectiveness of the NLRA and the rights of workers 
that are enshrined within the Act. Section 1 of the Act 
declares ``it is the policy of the United States'' to encourage 
``the practice and procedure of collective bargaining and [to 
protect] the exercise by workers of full freedom of 
association, self-organizing and designation of representatives 
of their own choosing, for the purpose of negotiating the terms 
and conditions of their employment, or other mutual aid or 
protection.''\26\
---------------------------------------------------------------------------
    \26\29 U.S.C. Sec. 151.
---------------------------------------------------------------------------
    Section 7 of the Act establishes the fundamental rights of 
workers to ``self-organization, to form, join, or assist labor 
organizations, to bargain collectively through representatives 
of their own choosing, and to engage in other concerted 
activities for the purpose of collective bargaining or other 
mutual aid or protection, and shall also have the right to 
refrain from any or all of such activities . . .''\27\ Section 
8 lays out a variety of prohibitions for both employer and 
union behavior. For example, employers may not interfere with, 
coerce, intimidate, or discriminate against employees in the 
exercise of their Section 7 rights. Section 9 lays out the 
NLRB-administered process for providing workers with elections 
to certify or decertify a union as their exclusive bargaining 
representative.
---------------------------------------------------------------------------
    \27\29 U.S.C. Sec. 157.
---------------------------------------------------------------------------
    To ensure that these rights are meaningful, workers must 
have the ability to enforce their rights. While the NLRA does 
not require specific remedies, Section 10(c) of the Act 
provides that the Board may order ``such affirmative action . . 
. as will effectuate the policies of [the] Act.''\28\ The 
Supreme Court has held that ``the relief which the statute 
empowers the Board to grant is to be adapted to the situation 
which calls for redress.''\29\ Unlike modern employment 
statutes, such as the Civil Rights Act, there is no individual 
right of action under the NLRA for retaliation due to an 
employee seeking to exercise their statutory rights. This means 
that workers cannot bring a claim in the courts. Aggrieved 
workers' only source of recourse is to file a complaint with 
the NLRB and their remedies are generally limited, unlike in 
the court system. For example, the law only requires employers 
to reinstate employees unlawfully discharged, post a notice 
promising to never do it again, and pay the employee back wages 
minus what the worker earned or should have earned in the 
interim. In 2003, the average back-pay amount was a mere 
$3,800.\30\
---------------------------------------------------------------------------
    \28\29 U.S.C. Sec. 160(c).
    \29\NLRB v. MacKay Radio & Telegraph Co., 304 U.S. 333, 348 (1938).
    \30\``Strengthening America's Middle Class through the Employee 
Free Choice Act,'' Hearing Before the Subcommittee on Health, 
Employment, Labor & Pensions, 110th Cong., 1st Sess. (2007) (written 
testimony of Nancy Schiffer, at 6).
---------------------------------------------------------------------------

         RECESS APPOINTMENTS NECESSARY TO KEEP NLRB FUNCTIONING

NLRB Could Not Function Without Recess Appointments

    The NLRB, by statute, has five members who serve five-year 
terms.\31\ However, for more than two years, (January 1, 2008 
to March 27, 2010) the Board operated with only two members 
(Wilma Liebman (D) and Peter Schaumber (R)) because the Senate 
failed to confirm nominees to fill vacancies on the Board.\32\ 
The over 500 decisions issued during this time were generally 
non-controversial because they had to be unanimous. However, in 
numerous cases, the Board's orders and decisions were 
challenged on the basis that the NLRB lacks authority to act 
with only two members.\33\ Although five courts of appeals held 
that the NLRB could act with only two members,\34\ the Supreme 
Court resolved a split among the Circuit Courts of Appeal and 
in a 5-4 ruling held that the NLRB does not have the authority 
to act without a quorum of three members.\35\ The Board lacked 
a quorum from January 1, 2008 to March 27, 2010.
---------------------------------------------------------------------------
    \31\29 U.S.C. 153.
    \32\See Talk about Recess Appointments Follows Senate's Defeat of 
Cloture Motion on Becker, 30 Daily Lab. Rep. A-10 (Feb. 17, 2010).
    \33\Brief for the National Labor Relations Board, New Process 
Steel, LLP v. NLRB, No. 08-1457 (2010). Available at http://
www.justice.gov/osg/briefs/2009/3mer/2mer/2008-1457.mer.aa.pdf.
    \34\Northeastern Land Services, Ltd. v. NLRB, 560 F.3d 36, 41 (1st 
Circuit 2009); Snell Island SNF LLC v. NLRB, 568 F.3d 410, 424 (2d 
Circuit 2009); Narricot Industries, L.P. v. NLRB, 587 F.3d 654, 660 
(4th Circuit 2009); New Process Steel, LLP v. NLRB, 564 F.3d 840, 845 
(7th Circuit 2009); Teamsters Local Union No. 523 v. NLRB, 590 F.3d 
849, 852 (10th Circuit 2009).
    \35\New Process Steel, LLP v. NLRB, No. 08-1457 (Supreme Court of 
the United States 2010). Available at http://www.supremecourt.gov/
opinions/09pdf/08-1457.pdf.
---------------------------------------------------------------------------
    The Board regained a quorum in March 2010 when President 
Obama, recognizing the need to have a fully-functioning Board, 
appointed Craig Becker and Mark Pearce during a Congressional 
recess.\36\ The Board was once again reduced to 2 members after 
Chairwoman Liebman's term expired in August 2011 and Craig 
Becker's term expired on January 3, 2012. The next day, January 
4, President Obama used his recess powers and appointed three 
new members to the Board: Democratic nominees Sharon Block, and 
Richard F. Griffin, Jr., and Republican nominee Terence F. 
Flynn. Although all three Members were appointed on the same 
day, the President had previously nominated each appointed 
Member.\37\
---------------------------------------------------------------------------
    \36\Both Mark Pearce and Brian Hayes (R) were confirmed by the 
Senate in June 2010.
    \37\Terrence Flynn was nominated by President Obama in January 2011 
and had been working at the Board as chief counsel to Member Hayes. 
Both Sharon Block and Richard Griffin were nominated on December 14, 
2011.
---------------------------------------------------------------------------

Republican Obstruction of Appointments

    President Obama made the Board recess appointments at a 
time when there had been an escalating battle surrounding the 
confirmation process and relentless Republican attacks on the 
NLRB. Senate Republicans openly admitted that they would 
utilize procedural tactics to prevent confirmation. Senator 
Lindsey Graham even vowed to block all nominees to the NLRB, 
saying ``the NLRB as inoperable could be considered 
progress.''\38\
---------------------------------------------------------------------------
    \38\Senator Tom Harkin (IA). ``Recess Appointments.'' Congressional 
Record 158: 12 (January 26, 2012) p. S88 Available at http://
www.gpo.gov/fdsys/pkg/CREC-2012-01-26/pdf/CREC-2012-01-26.pdf
---------------------------------------------------------------------------
    Obstruction of President Obama's appointments has not been 
limited to his nominations to the Board. In the 111th Congress 
alone, the Republican Minority required cloture votes on 
President Obama's nominees 21 times--more than in any previous 
Congress in history.\39\ As of January 26, 2012, 74 nominees 
were pending consideration on the Senate floor while 107 are 
held up in committee because of ideological differences.\40\
---------------------------------------------------------------------------
    \39\Richard S. Beth and Betsy Palmer, Cloture Attempts on 
Nominations, March 9, 2012, CRS RL32878, p. 4.
    \40\Jonathan Weisman, Appointments Challenge Senate Role, Experts 
Say, N.Y. Times (Jan. 7, 2012)
---------------------------------------------------------------------------
    Republicans have also worked to prevent nominations by 
interfering with the President's power to make recess 
appointments. In 2011, almost 80 freshman Representatives 
requested that Speaker Boehner, Majority Leader Cantor, and 
Majority Whip McCarthy take ``all appropriate measures to 
prevent any and all recess appointments by preventing the 
Senate from recessing for the remainder of the 112th 
Congress.''\41\ Signatories to this letter include seven 
Committee Republicans: Representatives DesJarlais, Rokita, 
Bucshon, Gowdy, Barletta, Roby, and Heck.\42\
---------------------------------------------------------------------------
    \41\Congressman Jeff Landry et al., Letter to Speaker Boehner, 
Majority Leader Cantor and Majority Whip McCarthy, June 15, 2011.
    \42\Id.
---------------------------------------------------------------------------
    In 2011, the Republican Majority began scheduling pro forma 
sessions in the House--in an attempt to withhold adjournment 
consent and prevent the Senate from recessing. As a result, the 
Senate has held pro forma sessions roughly every three days 
during breaks based on a prior Department of Justice (``DOJ'') 
memo suggesting that a three-day recess minimum is needed to 
trigger appointment authority. However, the Eleventh Circuit in 
Evans v. Stephens held that the ``Constitution, on its face, 
does not establish a minimum time that an authorized break in 
the Senate must last to give legal force to the President's 
appointment under the Recess Appointment Clause.''\43\ Prior to 
making the recent recess appointments the President consulted 
DOJ. On January 6, 2012, DOJ issued a memorandum opinion for 
the counsel to President Obama that reaffirmed this principle. 
The DOJ concluded that the President had discretion to 
determine that the Senate was unavailable to perform its 
advise-and-consent function and to exercise his recess 
appointment power.\44\
---------------------------------------------------------------------------
    \43\Evans v. Stephens, 387 F.3d 1220, 1224 (11th Cir. 2004).
    \44\Department of Justice memo Lawfulness of Recess Appointments 
During a Recess of the Senate Notwithstanding Periodic Pro Forma 
Sessions, January 6, 2012 at 23.

                                NOMINATIONS AND RECESS APPOINTMENTS TO NATIONAL LABOR RELATIONS BOARD, 2009--MARCH 201345
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                           Presidential                           Final Senate
            Congress                  Nominee (a)             action               Date            status (b)       Subsequent action         Date
--------------------------------------------------------------------------------------------------------------------------------------------------------
111.............................  Brian Hayes........  Nominated..........           7/9/2009  Confirmed.........  ..................          6/22/2010
111.............................  Mark Gaston Pearce.  Nominated..........           7/9/2009  Confirmed.........  ..................          6/22/2010
111.............................  Mark Gaston Pearce.  Recess appointment           3/27/2010
                                                        announced.
111.............................  Mark Gaston Pearce.  Nominated..........          4/21/2010  Referred..........  Returned to                12/22/2010
                                                                                                                    President.
111.............................  Craig Becker (c)...  Nominated..........           7/9/2009  Reported..........  Returned to                12/24/2009
                                                                                                                    President.
111.............................  Craig Becker (c)...  Nominated..........           7/9/2009  Reported..........  Returned to                12/24/2009
                                                                                                                    President.
111.............................  Craig Becker.......  Nominated..........          1/20/2010  Cloture rejected..  Returned to                  8/5/2010
                                                                                                                    President.
111.............................  Craig Becker.......  Recess appointment           3/27/2010
                                                        announced.
111.............................  Craig Becker.......  Nominated..........          4/21/2010  Referred..........  Returned to                12/22/2010
                                                                                                                    President.
112.............................  Craig Becker.......  Nominated..........          1/26/2011  Referred..........  Withdrawn.........         12/15/2011
112.............................  Terence Francis      Nominated..........           1/5/2011  Referred..........  Withdrawn.........           6/7/2012
                                   Flynn.
112.............................  Terence Francis      Recess appointment            1/4/2012
                                   Flynn.               announced.
112.............................  Terence Francis      Nominated..........          2/13/2012  Referred..........  Withdrawn.........           6/7/2012
                                   Flynn.
112.............................  Lafe E. Solomon (d)  Nominated..........           1/5/2011  Referred..........  Returned to                  1/3/2013
                                                                                                                    President.
112.............................  Richard F. Griffin,  Nominated..........         12/15/2011  Referred..........  Returned to                  1/3/2013
                                   Jr.                                                                              President.
112.............................  Richard F. Griffin,  Recess appointment            1/4/2012
                                   Jr.                  announced.
112.............................  Richard F. Griffin,  Nominated..........          2/13/2012  Referred..........  Returned to                  1/3/2013
                                   Jr.                                                                              President.
113.............................  Richard F. Griffin,  Nominated..........          2/13/2013  Referred..........
                                   Jr.
112.............................  Sharon Block.......  Nominated..........         12/15/2011  Referred..........  Returned to                  1/3/2013
                                                                                                                    President.
112.............................  Sharon Block.......  Recess appointment            1/4/2012
                                                        announced.
112.............................  Sharon Block.......  Nominated..........          2/13/2012  Referred..........  Returned to                  1/3/2013
                                                                                                                    President.
113.............................  Sharon Block.......  Nominated..........          2/13/2013  Referred .........
--------------------------------------------------------------------------------------------------------------------------------------------------------
45Legislative Information System of the U.S. Congress (LIS), ``Nominations'' file. Recess appointment information from CRS Report R42329, Recess
  Appointments Made by President Barack Obama, by Henry B. Hogue and Maureen Bearden.
Notes:
(a) Except as noted, all nominees were nominated as Members of the NLRB. See text of memorandum for explanation of overlapping nominations to the same
  term of the same position.
(b) For nominations that received floor action, the entry in this column appears in boldface.
(c) Becker was nominated simultaneously for a term ending December 16, 2009, and a term ending December 16, 2014.
(d) Solomon was nominated not as a Member of the NLRB, but as its General Counsel.

     NOEL CANNING--OVERTURNING LONG-ESTABLISHED INTERPRETATION OF 
              PRESIDENT'S CONSTITUTIONAL APPOINTMENT POWER

    Legal challenges were quickly filed against President 
Obama's recess appointments to the Board (and the Consumer 
Financial Protection Bureau). In January 2013, a three-judge 
panel of the United States Court of Appeals for the D.C. 
Circuit held in the Noel Canning case that President Obama's 
recess appointments of NLRB Members Block and Griffin were 
invalid. The court's decision broke with long-established 
precedent and has implications far beyond the NLRB, calling 
into question hundreds of previous presidential appointments 
across the federal government and federal courts.

Noel Canning

    Noel Canning was initially the subject of an unfair labor 
practice (``ULP'') proceeding filed by the Teamsters before the 
NLRB. The case arose out of a dispute between the employer, 
Noel Canning, a soft drink bottler, and the International 
Brotherhood of Teamsters Local 760, concerning whether there 
was an agreement on the terms of a collective bargaining 
agreement and whether Noel Canning committed an unfair labor 
practice in refusing to execute the collective bargaining 
agreement. In this case, the employer and the union were 
negotiating a new contract. While the union asserts the parties 
were able to reach an agreement, the employer refused to 
execute it and the union filed a ULP with the Board. The NLRB 
Administrative Law Judge (``ALJ'') ruled in favor of the union 
and the Board affirmed the ALJ decision. Consequently, Noel 
Canning appealed that decision to the D.C. Circuit. The NLRB 
petitioned for enforcement of its decision and order.

D.C. Circuit Decision

    In its appeal before the D.C. Circuit Court, Noel Canning 
challenged the validity of the Board's decision and argued the 
Board did not have a quorum to issue a decision in the case 
because the recess appointments were not valid. The D.C. 
Circuit ruled in favor of the Noel Canning Company, agreed with 
the employer and invalidated Obama's recess appointments on two 
grounds. It first held that the Recess Appointments Clause 
refers only to intersession recess (between two formal sessions 
of Congress) and does not include intrasession breaks or 
adjournments.\46\ Under that reasoning, President Obama's 
appointment of Members Block and Griffin on January 4, 2012 
constituted an intrasession appointment and was therefore 
invalid. The D.C. Circuit then considered when a vacancy must 
``happen'' for purposes of the Recess Appointments Clause. They 
concluded that the clause covers only vacancies that arise 
during the recess, not vacancies that ``happen to exist'' when 
the recess begins (i.e., a seat vacant before recess begins 
cannot be filled during recess). This interpretation further 
restrains the president's recess appointment powers. The court 
held that President Obama's NLRB appointments were invalid on 
this basis as well, given that none of the vacancies themselves 
arose during an intersession recess. For these two reasons, the 
D.C. Circuit found the Board lacked a quorum and could not 
lawfully decide the underlying case, a basic unfair labor 
practice case.
---------------------------------------------------------------------------
    \46\Noel Canning v. NLRB, No. 12-1153 Consolidated with 12-1153, 
slip op. at 30 (Jan. 25, 2013). Available at http://
www.cadc.uscourts.gov/internet/opinions.nsf/D13E4C2A 
7B33B57A85257AFE00556B29/$file/12-1115-1417096.pdf.
---------------------------------------------------------------------------
    The opinion contradicts federal appellate precedent in 
three circuits. In 2004, the Eleventh Circuit upheld President 
Bush's intrasession recess appointment of Judge Pryor. Evans v. 
Stephens, 387 F.3d 1220 (2004) (en banc). The Second and Ninth 
Circuits both refused to limit the President's appointment 
powers to vacancies that arise during a recess. United States 
v. Woodley, 726 F.2d 1328 (9th Cir. 1982); United States v. 
Allocco, 305 F.2d 704 (2nd Cir. 1962).

Implications of Noel Canning

    The recess appointment power is provided for under Article 
II of the Constitution, which states that ``[t]he President 
shall have Power to fill up all Vacancies that may happen 
during the Recess of the Senate, by granting Commissions which 
shall expire at the End of their next Session.''\47\ Using this 
power, Presidents have appointed hundreds of individuals to 
positions at various agencies and the federal courts. Reagan 
made 232 such appointments over the course of his presidency. 
Clinton made 139, and George W. Bush made 171. George H.W. Bush 
used the power 74 times in his single term--more than double 
the 32 times it was used during the first term of the Obama 
administration.\48\ There have been 29 total recess 
appointments to the NLRB, and every president since Carter has 
exercised this power for Board appointments.\49\
---------------------------------------------------------------------------
    \47\U.S. Constitution Article II, Section 2, Clause 3.
    \48\See Congressional Research Service, ``The Noel Canning Decision 
and Recess Appointments Made from 1981-2013'', Table 1. (Feb. 4, 2013).
    \49\See Congressional Research Service, ``The Noel Canning Decision 
and Recess Appointments Made from 1981-2013'', Tables 2-11. (Feb. 4, 
2013).
---------------------------------------------------------------------------
    The D.C. Circuit's decision in Noel Canning extends far 
beyond the current challenges to the President's Board recess 
appointments. Under the Court's holding in the case hundreds of 
recess appointments would be invalidated if they were subject 
to the decision, including as many as 25 recess appointments to 
the NLRB.\50\ The Congressional Research Service (CRS) has 
recently estimated that since January 20, 1981, presidents have 
made a total of 329 intrasession recess appointments, each of 
which would be invalid under Noel Canning. Reagan made 72 such 
appointments, George H.W. Bush made 37, and Clinton made 53. 
Ironically, the most active president in making intrasession 
recess appointments was Republican George W. Bush, who made 141 
during his presidency, while President Obama has made only 26--
the fewest of any president since Reagan.\51\ Data is not 
readily available on the exact number of recess appointments 
that would have been invalidated under the alternative grounds 
specified in Noel Canning--i.e., those intersession recess 
appointments in which the vacancy did not ``arise'' during a 
recess--however CRS concluded that there are a ``substantial 
number'' of these appointments as well.\52\
---------------------------------------------------------------------------
    \50\Id.
    \51\Henry B. Hogue, Maeve P. Carey, Michael W. Greene and Maureen 
Bearden, The Noel Canning Decision and Recess Appointments Made from 
1981-2013, Feb. 4, 2013, CRS Memorandum, available at http://
democrats.edworkforce.house.gov/sites/democrats.edworkforce.house.gov/
files/documents/112/pdf/Recess%20Appointments%201981-2013.pdf.
    \52\Id. at 3.
---------------------------------------------------------------------------
    The appointments potentially invalidated by Noel Canning 
would disrupt the work of many federal agencies, ranging from 
the Department of the Treasury to the Office of Management and 
Budget--and include appointments to critical positions. For 
example, President Reagan's intrasession recess appointment of 
Donald P. Hodel to serve as Secretary of Energy on November 5, 
1982 would have been invalidated by Noel Canning, as would 
President George W. Bush's nomination of John R. Bolton to 
serve as U.S. Representative to the United Nations Appointee on 
August 1, 2005. Ambassador Bolton served out his recess 
appointment without ever receiving Senate approval. The federal 
courts themselves would also be impacted by the D.C. Circuit 
Court's decision in Noel Canning. For example, President George 
W. Bush intrasession appointed William H. Pryor on February 20, 
2004 to serve on the U.S. Court of Appeals for the Eleventh 
Circuit. His nomination and all the cases in which he 
participated could be invalidated until his confirmation on 
June 9, 2005.
    House Republicans did not raise concerns about the 
constitutionality of these prior intrasession appointments by 
Presidents who were not Barack Obama.

                       NUMBER OF DOCUMENTED INTRASESSION AND INTERSESSION RECESS APPOINTMENTS SINCE JANUARY 20, 1981, BY PRESIDENT
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                     Intrasession recess           Intersession recess         Total documented recess
                        Administration                             appointments (estimate)       appointments (estimate)            appointments
--------------------------------------------------------------------------------------------------------------------------------------------------------
Ronald W. Reagan..............................................                            72                           160                           232
George H. W. Bush.............................................                            37                            41                            78
William J. Clinton............................................                            53                            86                           139
George W. Bush................................................                           141                            30                           171
Barack H. Obama...............................................                            26                             6                            32
        Total.................................................                           329                           323                           652
--------------------------------------------------------------------------------------------------------------------------------------------------------

 H.R. 1120 DENIES WORKERS & EMPLOYERS ANY EFFECTIVE REMEDY WHEN THEIR 
                        NLRA RIGHTS ARE VIOLATED

    H.R. 1120 requires the NLRB to cease all activity that 
requires a quorum of Board members. The bill is nothing more 
than an attempt to shut down the only agency with the authority 
to ensure workers have the right to organize and bargain 
collectively. Nothing in this legislation protects workers or 
employers or provides greater certainty in labor-management 
relations. At nearly every Committee hearing on Board matters, 
witnesses have testified that the politicized exercises 
Committee Republicans continue to engage in against the Board 
does nothing to harmonize labor-management relations.
    H.R. 1120 requires the Board to cease all activity that 
requires a quorum of members until (1) a quorum of Board 
members are confirmed by the Senate, (2) the Supreme Court 
issues a decision on the constitutionality of the recess 
appointments, (3) the adjournment sine die of the first session 
of the 113th Congress. In the event that a quorum of members is 
confirmed by the Senate or the 113th Congress adjourns sine 
die, no decision, rule, vote, or other action taken by the 
Board on or after January 4, 2012 will be enforceable. This 
means that all decisions issued by the Board during that time 
(approximately 569 decisions) will remain unenforceable. In 
addition, the bill would prevent the Board from enforcing 
decisions issued prior to January 4, 2012, where parties are in 
contempt.
    Specifically, the bill affects the Board's ability to act 
in the following areas:

Decisions & Orders--Under this bill, the Board will be prevented from 
        issuing decisions.

      After an ALJ in a ULP proceeding or a Regional 
Director in an election case issues a decision, a party may 
appeal to the Board. Under H.R. 1120, parties could appeal, but 
the Board would be prevented from deciding the issue, creating 
uncertainty for employees, employers, and unions alike. For 
example, a worker unlawfully fired from her job may be awarded 
an order of reinstatement by an ALJ. If that decision is 
appealed, the Board cannot hear the appeal, and the injured 
worker will remain out of her job, with her family enduring the 
associated consequences, while H.R. 1120 is in effect.

Petition for Enforcement of an Order

      Board orders are not self-enforcing. Only a U.S. 
Circuit Court of Appeals can enforce Board orders, and the 
Board must petition for such enforcement.\53\ Under H.R. 1120, 
there would be no way to enforce Board orders in ULP charges, 
whether the order was the product of the current Board or a 
prior Board.
---------------------------------------------------------------------------
    \53\See, 29 U.S.C. Sec. 160(e).
---------------------------------------------------------------------------

Pursuing Injunctive Relief

      In some cases where a ULP is filed, the alleged 
violation is so severe that immediate steps are necessary to 
prevent further harm to workers whose rights have been 
violated. Under the NLRA, only the Board can grant the General 
Counsel permission to petition a Federal District Court for 
10(j) injunctive relief. Under H.R. 1120, there will be no way 
for the NLRB to enjoin or restrain plainly unlawful acts 
pending resolution of a charge. In other words, H.R. 1120 
creates an open season on pro-union workers, who might be fired 
en masse for attempting to organize, removing them from the 
workforce while H.R. 1120 is in effect.

Elections

      Under the NLRA, prior to an election being held, 
a party may challenge a Regional Director's determination of 
the bargaining unit, by filing a ``petition for review'' with 
the Board. Under the Board's internal rules (Section 11274 of 
the Casehandling Manual), ``[t]he filing of a request for 
review shall not, unless otherwise ordered by the Board, 
operate as a stay of any action taken or directed by the 
Regional Director, including the direction or conduct of an 
election, except that the Regional Director, in the absence of 
a waiver, may not open and count any ballots that may be 
challenged until the Board has ruled on any request for review 
that may be filed. Nor will the granting of review stay the 
Regional Director's decision or the directed election unless 
ordered by the Board.'' Under H.R. 1120, the Board would not be 
able to ``rule on any request for review.'' Therefore, by 
simply filing this petition for review, a party can stop 
ballots from being opened and counted under H.R. 1120.
      If neither party files a petition for review and 
the ballots are opened and counted, a party can ignore the 
election results under H.R. 1120. In the case of a 
certification election, for example, if the Regional Director 
determines that the union has won the election and orders the 
parties to begin collective bargaining, the employer may simply 
refuse to collectively bargain. The union may file an unfair 
labor practice charge. It may prevail before an ALJ. The 
employer can then appeal the decision to the full Board, where 
no further action may be taken under H.R. 1120.

Appointment of Regional Directors

      The Board must approve the appointment, transfer, 
or discharge of any Regional Director.\54\ The current Board 
has appointed or transferred 10 Regional Directors and 
additional vacancies are likely to occur. Under H.R. 1120, one-
third of the Agency's regional offices would be without a 
Director. Workers and employers in those regions would be 
unable to have election petitions addressed, elections held or 
certified, or ULP complaints issued. Regions in which the NLRA 
will be effectively repealed while H.R. 1120 is in effect 
include Atlanta, covering the southeast; Tampa, covering most 
of Florida; Brooklyn; Manhattan; Los Angeles, covering southern 
California; Detroit, covering most of Michigan; Philadelphia, 
covering eastern Pennsylvania and southern New Jersey; Seattle, 
covering the northwest; Puerto Rico; and Milwaukee covering 
most of Wisconsin and the Michigan upper peninsula. Moreover, 
it is not at all clear what comes of decisions already made by 
these appointed Regional Directors, including whether certified 
elections become uncertified under this bill.
---------------------------------------------------------------------------
    \54\77 Fed. Reg. 45696.
---------------------------------------------------------------------------

Issuing Rules and Regulations

      Under H.R. 1120, the Board would be prevented 
from issuing rules and regulations. While Republicans have 
criticized the Board's attempts to issue regulations that would 
have required the posting of an employee rights' notice and 
improved the election process, this legislation also prevents 
the Board from taking basic administrative steps to improve 
Agency efficiency. For example, the Board's effort to 
streamline its regional offices requires changes to the 
Agency's rules and would, therefore, be prohibited under H.R. 
1120.

Unfair Labor Practice Strikes

      In labor law, two different tools are available 
to parties: legal remedies and economic weapons. Under H.R. 
1120, if an employer refuses to comply with an Administrative 
Law Judge decision, with no effective appeals process in place 
to enforce that decision, or a complaint process is rendered 
unavailable in a region of the country, the only recourse 
available to workers is the economic weapon--specifically, an 
unfair labor practice strike. In this way, H.R. 1120 encourages 
workers to engage in work stoppages if they need to remedy 
various violations of the NLRA, such as an unlawful firing or 
bad faith bargaining. The bill not only increases uncertainty, 
it increases instability and unrest in workplaces and in the 
national economy. This result should be unsurprising, as the 
NLRB was established, not just to protect the rights of workers 
and employers, but ``to provide orderly and peaceful procedures 
for preventing the interference by either with the legitimate 
rights of the other.'' By shutting down the NLRB, H.R. 1120 
invites chaos in labor relations.

                      UNIONS AND THE MIDDLE CLASS

    The consequences of H.R. 1120 cannot be understated. H.R. 
1120 is an assault on workers and their right to organize and 
collectively bargain. By shutting down the only agency with the 
authority to enforce the right to organize and collectively 
bargain, Republicans continue to attempt to frustrate workers' 
attempts to organize and have a voice in the workplace. These 
attacks are especially damaging as our nation emerges from the 
Great Recession. Unions helped build the American middle class. 
At a time when wages are stagnant and wealth is increasingly 
concentrated, it is critical that workers have a meaningful 
voice in our economic recovery. In fact, wage depreciation, 
egregious inequality, and excessive corporate power that 
undermined the ability of the average worker to make a living 
wage spurred the passage of the NLRA in 1935.
    U.S. Senator Robert F. Wagner, the author of the NLRA, 
reviewed economic conditions leading up to the Great Depression 
in a May 15, 1935 speech to the Senate, stating that

         By 1929, 200 huge corporations owned one-half of our 
        total corporate wealth. Two years later, 100 general 
        industrial corporations out of a total of 300,000 
        controlled one third of the general industrial wealth 
        of the Nation. As a natural corollary, the wage 
        earners' share in the product created by manufacturing 
        has declined steadily for nearly a century. . . . 
        Sixteen million families, or 60 percent of the people, 
        had annual incomes below the $2,000 per year necessary 
        for the basic requirements of health and decency. And 
        nearly 20,000,000 families, constituting 71 percent of 
        all America, received less than $2,500 a year. At the 
        same time, in the highest income bracket, one-tenth of 
        1 percent of the families in the United States were 
        earning as much as the 42 percent at the bottom.\55\
---------------------------------------------------------------------------
    \55\Leon H. Keyserling. The Wagner Act: Its Origin and Current 
Significance, 29 George Washington Law Review 199 (1960-1961).

    The economic conditions that contributed to the Great 
Depression mirror many of the same conditions that led to the 
Great Recession. Now is not the time to impede workers' rights 
under the NLRA, which for decades helped reverse wage 
stagnation and income inequality. As unions came under 
increasing assault in recent decades, wage growth has declined, 
and income disparities have increased. A recent study from 
Northeastern University found that, between 2009 when the 
economic recovery began and the end of 2010, national income 
rose by $528 billion with $464 billion of that growth going to 
corporate profits and $7 billion to wages and salaries.\56\ 
Better wages mean workers have money to spend on their 
families, which is good for local businesses and good for job 
creation.
---------------------------------------------------------------------------
    \56\Andrew Sum, et al., The ``Jobless and Wageless'' Recovery from 
the Great Recession of 2007-2009: The Magnitude and Sources of Economic 
Growth Through 2011 I and Their Impacts on Workers, Profits, and Stock 
Values, Northeastern University (2011). Available at http://
www.clms.neu.edu/publication/documents/
RevisedlCorporatelReportlMayl27th.pdf.
---------------------------------------------------------------------------
    Current data overwhelmingly shows that employees in 
unionized workplaces earn significantly more than non-union 
workers. According to the Bureau of Labor Statistics, the 
median weekly earnings of full-time union workers in 2012 were 
$943 compared with $742 for nonunion workers--or $10,400 more 
per year per worker.\57\ In addition, unionization also raises 
the wages of the typical low-wage worker by 20.6%.\58\ And 
unionized high school graduates earned 17% more than non-
unionized high school graduates in 2011.\59\
---------------------------------------------------------------------------
    \57\Bureau of Labor Statistics. ``Union Members--2012'' (January 
23, 2013) Available at 
http://www.bls.gov/news.release/pdf/union2.pdf.
    \58\Schmitt, John. ``The Union Wage Advantage for Low-Wage 
Workers'' Center for Economic and Policy Research (May 2008).
    \59\Lawrence Mishel. ``Unions, Inequality, and Faltering Middle-
Class Wages'' Economic Policy Institute (Aug. 29, 2012). Available at 
http://www.epi.org/files/2012/ib342-unions-inequality-middle-class-
wages.pdf.
---------------------------------------------------------------------------
    In addition, union workplaces are more likely to provide 
employees with critical benefits, including health insurance 
and retirement benefits. Union workers are 28.2% more likely 
than their nonunion counterparts to have employer-sponsored 
healthcare plans.\60\ Furthermore, 71.9% of union workers are 
offered employer-provided pensions, compared with only 43.8% of 
nonunion workers. When this difference is adjusted for other 
factors, union members are 53.9% more likely to have pension 
coverage.\61\ In addition, union workers are 285%--nearly three 
times--more likely than nonunion workers to have defined-
benefit pensions.\62\
---------------------------------------------------------------------------
    \60\Id.
    \61\Id.
    \62\AFL-CIO. ``The Union Difference: Union Advantage by the 
Numbers'' (January 2009) Available at http://www.cirseiu.org/files/
2012/01/Union-advantage-by-the-numbers.pdf.
---------------------------------------------------------------------------
    Participation in unions is important to improving the lives 
of women and minorities. Unions raise the wages of women 
workers, who have traditionally earned less than their male 
counterparts.\63\ In 2012, the median wage for women union 
workers was 32.3% greater than the median wage for their 
nonunion counterparts.\64\ Unions also raise the wages of 
minorities, helping close racial and ethnic wage gaps.\65\ In 
2012, the median wage for African American union workers was 
30.9% greater than the median wage for their nonunion 
counterparts.\66\ In 2012, the median wage for Hispanic union 
workers was 58.5% greater than the median wage for their 
nonunion counterparts.\67\
---------------------------------------------------------------------------
    \63\Schmitt, John. ``Unions and Upward Mobility for Women Workers'' 
Center for Economic and Policy Research (February 23, 2009).
    \64\Bureau of Labor Statistics. ``Union Members--2012.''
    \65\Lawrence Mishel. ``Unions, Inequality, and Faltering Middle-
Class Wages.''
    \66\Bureau of Labor Statistics. ``Union Members--2012.''
    \67\Id.
---------------------------------------------------------------------------
    Finally, unions reduce wage inequality. According to the 
Economic Policy Institute:

          Collective bargaining reduces wage inequality for 
        three reasons. The first is that wage setting in 
        collective bargaining focuses on establishing 
        ``standard rates'' for comparable work across business 
        establishments and for particular occupations within 
        establishments. The outcome is less differentiation of 
        wages among workers and, correspondingly, less 
        discrimination against women and minorities. A second 
        reason is that wage gaps between occupations tend to be 
        lower where there is collective bargaining, and so the 
        wages in occupations that are typically low-paid tend 
        to be higher under collective bargaining. A third 
        reason is that collective bargaining has been most 
        prevalent among middle-class workers, so it reduces the 
        wage gaps between middle-class workers and high earners 
        (who have tended not to benefit from collective 
        bargaining).\68\
---------------------------------------------------------------------------
    \68\Lawrence Mishel, The decline of collective bargaining and the 
erosion of middle-class incomes in Michigan, EPI Briefing Paper #347, 
p. 2, September 25, 2012. Available at http://www.epi.org/files/2012/
bp347-collective-bargaining.pdf.

    In H.R. 1120, Committee Republicans have introduced a bill 
that does nothing to create jobs, improve the economy, or 
provide certainty in labor-management relations. Instead, they 
have again decided to spend Committee time and resources on a 
bill attacking the right of workers to organize and bargain 
collectively. If enacted, this legislation would leave workers 
and employers without a legal process and remedies when their 
NLRA rights are violated. This bill sends a clear message to 
workers and employers--in the 113th Congress, their rights and 
---------------------------------------------------------------------------
concerns will again take a backseat to partisan politics.

                                   George Miller, Senior Democratic 
                                       Member.
                                   Bobby Scott.
                                   Carolyn McCarthy.
                                   Rush Holt.
                                   Raul M. Grijalva.
                                   Dave Loebsack.
                                   Marcia L. Fudge.
                                   Gregorio Kilili Camacho Sablan.
                                   Frederica S. Wilson.
                                   Robert E. Andrews.
                                   Ruben Hinojosa.
                                   John F. Tierney.
                                   Susan A. Davis.
                                   Tim Bishop.
                                   Joe Courtney.
                                   Jared Polis.
                                   John Yarmuth.
                                   Suzanne Bonamici.

                                  

```