[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]
THE FUTURE OF THE NLRB:
WHAT NOEL CANNING VS. NLRB MEANS
FOR WORKERS, EMPLOYERS, AND UNIONS
SUBCOMMITTEE ON HEALTH,
EMPLOYMENT, LABOR, AND PENSIONS
COMMITTEE ON EDUCATION
AND THE WORKFORCE
U.S. House of Representatives
ONE HUNDRED THIRTEENTH CONGRESS
HEARING HELD IN WASHINGTON, DC, FEBRUARY 13, 2013
Serial No. 113-2
Printed for the use of the Committee on Education and the Workforce
Available via the World Wide Web:
Committee address: http://edworkforce.house.gov
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COMMITTEE ON EDUCATION AND THE WORKFORCE
JOHN KLINE, Minnesota, Chairman
Thomas E. Petri, Wisconsin George Miller, California,
Howard P. ``Buck'' McKeon, Senior Democratic Member
California Robert E. Andrews, New Jersey
Joe Wilson, South Carolina Robert C. ``Bobby'' Scott,
Virginia Foxx, North Carolina Virginia
Tom Price, Georgia Ruben Hinojosa, Texas
Kenny Marchant, Texas Carolyn McCarthy, New York
Duncan Hunter, California John F. Tierney, Massachusetts
David P. Roe, Tennessee Rush Holt, New Jersey
Glenn Thompson, Pennsylvania Susan A. Davis, California
Tim Walberg, Michigan Raul M. Grijalva, Arizona
Matt Salmon, Arizona Timothy H. Bishop, New York
Brett Guthrie, Kentucky David Loebsack, Iowa
Scott DesJarlais, Tennessee Joe Courtney, Connecticut
Todd Rokita, Indiana Marcia L. Fudge, Ohio
Larry Bucshon, Indiana Jared Polis, Colorado
Trey Gowdy, South Carolina Gregorio Kilili Camacho Sablan,
Lou Barletta, Pennsylvania Northern Mariana Islands
Martha Roby, Alabama John A. Yarmuth, Kentucky
Joseph J. Heck, Nevada Frederica S. Wilson, Florida
Susan W. Brooks, Indiana Suzanne Bonamici, Oregon
Richard Hudson, North Carolina
Luke Messer, Indiana
Barrett Karr, Staff Director
Jody Calemine, Minority Staff Director
SUBCOMMITTEE ON HEALTH, EMPLOYMENT, LABOR, AND PENSIONS
DAVID P. ROE, Tennessee, Chairman
Joe Wilson, South Carolina Robert E. Andrews, New Jersey,
Tom Price, Georgia Ranking Member
Kenny Marchant, Texas Rush Holt, New Jersey
Matt Salmon, Arizona David Loebsack, Iowa
Brett Guthrie, Kentucky Robert C. ``Bobby'' Scott,
Scott DesJarlais, Tennessee Virginia
Larry Bucshon, Indiana Ruben Hinojosa, Texas
Trey Gowdy, South Carolina John F. Tierney, Massachusetts
Lou Barletta, Pennsylvania Raul M. Grijalva, Arizona
Martha Roby, Alabama Joe Courtney, Connecticut
Joseph J. Heck, Nevada Jared Polis, Colorado
Susan W. Brooks, Indiana John A. Yarmuth, Kentucky
Luke Messer, Indiana Frederica S. Wilson, Florida
C O N T E N T S
Hearing held on February 13, 2013................................ 1
Statement of Members:
Andrews, Hon. Robert E., ranking member, Subcommittee on
Health, Employment, Labor, and Pensions.................... 4
Roe, Hon. David P., Chairman, Subcommittee on Health,
Employment, Labor, and Pensions............................ 1
Prepared statement of.................................... 3
Statement of Witnesses:
King, G. Roger, of counsel, Jones Day, on behalf of the U.S.
Chamber of Commerce and Coalition for a Democratic
Prepared statement of.................................... 34
LaJeunesse, Raymond J., Jr., vice president & legal director,
National Right to Work Legal Defense Foundation, Inc....... 12
Prepared statement of.................................... 14
Lorber, Lawrence Z., partner, Proskauer Rose LLP............. 6
Prepared statement of.................................... 8
Reynolds, N. Elizabeth, member of the firm, Allison, Slutsky
and Kennedy, P.C........................................... 19
Prepared statement of.................................... 21
Mr. King, attachments to prepared statement, Internet address
Mr. LaJeunesse, follow-up letter dated Feb. 19, 2013......... 63
THE FUTURE OF THE NLRB:
WHAT NOEL CANNING VS. NLRB MEANS
FOR WORKERS, EMPLOYERS, AND UNIONS
Wednesday, February 13, 2013
U.S. House of Representatives
Subcommittee on Health, Employment, Labor, and Pensions
Committee on Education and the Workforce
The subcommittee met, pursuant to call, at 10:06 a.m., in
room 2175, Rayburn House Office Building, Hon. David P. Roe
[chairman of the subcommittee] presiding.
Present: Representatives Roe, Guthrie, DesJarlais, Bucshon,
Gowdy, Brooks, Andrews, Holt, Scott, Tierney, Courtney, Polis,
Also present: Representative Kline.
Staff present: Katherine Bathgate, Deputy Press Secretary;
Owen Caine, Legislative Assistant; Molly Conway, Professional
Staff Member; Ed Gilroy, Director of Workforce Policy; Benjamin
Hoog, Legislative Assistant; Marvin Kaplan, Workforce Policy
Counsel; Barrett Karr, Staff Director; Nancy Locke, Chief
Clerk/Assistant to the General Counsel; Brian Newell, Deputy
Communications Director; Krisann Pearce, General Counsel;
Nicole Sizemore, Deputy Press Secretary; Alissa Strawcutter,
Deputy Clerk; Loren Sweatt, Senior Policy Advisor; Alexa
Turner, Staff Assistant; Aaron Albright, Minority
Communications Director for Labor; Mary Alfred, Minority
Fellow, Labor; Tylease Alli, Minority Clerk; John D'Elia,
Minority Labor Policy Associate; Brian Levin, Minority Deputy
Press Secretary/New Media Press Coordinator; Celine McNicholas,
Minority Senior Labor Counsel; Richard Miller, Minority Senior
Labor Policy Advisor; Megan O'Reilly, Minority General Counsel;
Michele Varnhagen, Minority Chief Policy Advisor/Labor Policy
Director; and Michael Zola, Minority Deputy Staff Director.
Chairman Roe. A quorum being present, Subcommittee on
Health, Employment, Labor, and Pensions will come to order. And
we have held up just a little bit because we have got one of
our witnesses hung up in a line outside trying to get in. So,
we will--but we will get started.
Good morning and welcome to the first hearing of the
Health, Employment, Labor, and Pensions Subcommittee in the new
Congress. I would like to welcome our members and thank our
witnesses for being with us today.
During the 112th Congress oversight of the National Labor
Relations Board was a leading priority for this committee.
Whether through hearings, letters, or legislation, we have
tried to ensure the rights of workers and their employers are
I realize this reveals some deep differences on the
committee. However, as a member of Congress we are obligated to
act whenever an agency may be harming our job creators and
workforce. And we will be neglecting our duty if we simply
looked the other way.
The power of the board affects almost every private
workplace. Rest assured, the committee will continue to keep a
close eye on the NLRB and do what is necessary to promote the
best interests of the American people. This hearing is part of
that effort. The board has recently taken steps to skew the
balance of power even further toward union leaders, and such
action demands our attention.
For example, the board is making it increasingly difficult
for employers to investigate possible misconduct and employee
complaints. Whether it is a worksite accident, allegation of
theft, or other charge of wrongdoing, employers must be able to
gather the facts and hold employees accountable. The safety and
security of the workplace depend on it.
In Banner Health and Piedmont Gardens, the board restricted
the ability to keep internal investigations confidential while
allowing unions to obtain sensitive statements provided by
witnesses. To conduct a confidential investigation, employers
will have to qualify with one of several narrow exceptions
dictated by the board. Internal investigations will be stymied,
business costs will rise, and employees will be harmed as
potentially dangerous and illegal behavior is left unresolved.
The board has also begun chipping away at the right of
workers not to fund union lobbying. In 1988, the U.S. Supreme
Court held in Communications Workers v. Beck that workers
forced to pay union dues do not have to finance a union's
political activities. The board's Kent Hospital decision walks
further away from this standard, forcing workers to cover
lobbying expenses unions claim related to collective
The rights of workers, as well as the opinion of the
nation's highest court, are being eviscerated by an activist
labor board. Today's NLRB will go to great lengths to undermine
employers, marginalize workers, and empower Big Labor. The
board has even ruled that policies promoting a courteous and
friendly work environment can run afoul of the law.
While the board's pro-union agenda is troubling, the fate
of these and other decisions are now in question. A year ago,
President Obama installed three recess appointments to the
board while Congress was meeting regularly in pro forma
session. A U.S. federal appeals court ruled in Noel Canning v.
NLRB that these so-called recess appointments are
unconstitutional. As we examine the ramifications of the
court's rulings, two important points must be raised.
First, President Obama's recess appointment scheme was
unprecedented. Presidents have been making intrasession recess
appointments for decades, but while Congress was actually in
recess. Comparing President Obama's intrasession recess
appointments to the past is inaccurate.
Second, partisan politics created this crisis. As 2011 came
into a close, the board was on the verge of losing a quorum and
falling into disarray. This could have been prevented if the
president had worked with the Senate to seat qualified
nominees. He did not. Instead, the president nominated two
individuals just the day before--days before the quorum was set
to expire, which is hardly enough time for the Senate to offer
its advice and consent.
Furthermore, the nomination of a Republican candidate
languished in the Senate for a year; no hearing, no debate, no
vote. This one individual would have allowed the board to
continue its business. Senate Democrats failed to act, crisis
emerged, and the president responded with an unconstitutional
Workers, employers and unions must now live with the
consequences of these unfortunate events. Any recent or future
decision is constitutionally suspect and open to challenge in
Countless individuals are left in legal limbo and the
rights of workers are hampered by a dysfunctional board. This
is not what the law anticipates or what the American people
deserve. It is my hope the president will right this wrong so
the board can continue to do its work in a more responsible
Again, I would like to thank our witnesses for joining us.
I will now recognize my distinguished colleague, Rob Andrews,
the senior Democratic member of this subcommittee, for his
[The statement of Chairman Roe follows:]
Prepared Statement of Hon. David P. Roe, Chairman,
Subcommittee on Health, Employment, Labor, and Pensions
Good morning and welcome to the first hearing of the Health,
Employment, Labor, and Pensions Subcommittee in the new Congress. I'd
like to welcome our members and thank our witnesses for being with us
During the 112th Congress, oversight of the National Labor
Relations Board was a leading priority for this committee. Whether
through hearings, letters, or legislation, we have tried to ensure the
rights of workers and their employers are protected. I realize this
revealed some deep differences on the committee. However, as members of
Congress we are obligated to act whenever an agency may be harming our
job creators and workforce. We would be neglecting our duty if we
simply looked the other way.
The power of the board affects almost every private workplace. Rest
assured, the committee will continue to keep a close eye on the NLRB
and do what is necessary to promote the best interests of the American
people. This hearing is part of that effort. The board has recently
taken steps to skew the balance of power even further toward union
leaders, and such actions demand our attention.
For example, the board is making it increasingly difficult for
employers to investigate possible misconduct and employee complaints.
Whether it's a worksite accident, allegation of theft, or other charge
of wrongdoing, employers must be able to gather the facts and hold
employees accountable. The safety and security of the workplace depend
In Banner Health and Piedmont Gardens, the board restricted the
ability to keep internal investigations confidential while allowing
unions to obtain sensitive statements provided by witnesses. To conduct
a confidential investigation, employers will have to qualify for one of
several narrow exceptions dictated by the board. Internal
investigations will be stymied, business costs will rise, and employees
will be harmed as potentially dangerous or illegal behavior is left
The board has also begun chipping away at the right of workers to
not fund union lobbying. In 1988, the U.S. Supreme Court held in
Communications Workers vs. Beck that workers forced to pay union dues
do not have to finance a union's political activities. The board's Kent
Hospital decision walks further away from this standard, forcing
workers to cover lobbying expenses unions claim relate to collective
The rights of workers, as well as the opinion of the nation's
highest court, are being eviscerated by the activist labor board.
Today's NLRB will go to great lengths to undermine employers,
marginalize workers, and empower Big Labor. The board has even ruled
that policies promoting a courteous and friendly work environment can
run afoul of the law.
While the board's pro-union agenda is troubling, the fate of these
and other decisions are now in question. A year ago, President Obama
installed three recess appointments to the board while Congress was
meeting regularly in pro forma session. A U.S. federal appeals court
ruled in Noel Canning vs. NLRB that these so-called recess appointments
are unconstitutional. As we examine the ramifications of the court's
ruling, two important points must be raised.
First, President Obama's recess appointment scheme was
unprecedented. Presidents have been making intrasession recess
appointments for decades, but while Congress was actually in recess.
Comparing President Obama's intrasession recess appointments to the
past is inaccurate.
Second, partisan politics created this crisis. As 2011 came to a
close, the board was on the verge of losing a quorum and falling into
disarray. This could have been prevented if the president had worked
with the Senate to seat qualified nominees. He didn't. Instead, the
president nominated two individuals just days before the quorum was set
to expire, which is hardly enough time for the Senate to offer its
advice and consent.
Furthermore, the nomination of a Republican candidate languished in
the Senate for a year--no hearing, no debate, and no vote. This one
individual would have allowed the board to continue its business.
Senate Democrats failed to act, a crisis emerged, and the president
responded with an unconstitutional power-grab.
Workers, employers, and unions must now live with the consequences
of these unfortunate events. Any recent or future decision is
constitutionally suspect and open to challenge in court. Countless
individuals are left in legal limbo and the rights of workers are
hampered by a dysfunctional board. This is not what the law anticipates
or what the American people deserve.
It is my hope the president will right this wrong so the board can
return to its work in a more responsible manner. Again, I'd like to
thank our witnesses for joining us, and I will now recognize my
distinguished colleague Rob Andrews, the senior Democratic member of
the subcommittee, for his opening remarks.
Mr. Andrews. Mr. Chairman, thank you. It is always a
privilege to share time with you and our colleagues around the
committee. I appreciate your continuing courtesies and
The title of this hearing is ``What Noel Canning v. NLRB
Means for Workers, Employers and Unions.'' Here is what it
means. It means that abuse of the doctrine of advise and
consent has paralyzed the ability of the National Labor
Relations Board to do anything. It means that the executive
branch has had its hands tied in a way that really stems not
from a principled constitutional difference, but from a
difference over the policies coming out of the NLRB.
One of the areas where there is greatest disagreement in
our country and on this committee is what the labor laws mean
and what they should mean. This is always a topic of hotly-
debated controversy. I would suggest, though, that the
resolution of that controversy should go through the three
mechanisms that exist to deal with it.
The first is elections. Those who are disquieted by the
rulings of the NLRB had the chance to elect a president who
would appoint members to the board who would see things their
way. The public decided a different way.
The second is legislation. This committee has jurisdiction
to amend the National Labor Relations Act or other relevant
statutes, and alter the course of decisions through the
statutory process. The committee has not attempted to do so. We
have not marked up one bill or advanced one bill to the floor
since the new majority took over that would accomplish that
And then the third way is through litigation. And
litigation is in fact pending. The Noel Canning case has been
decided at the appellate level. Whether it will go further is a
matter for the Supreme Court to decide. It may or it may not.
Differences over policy should not be carried out by
paralyzing executive branch agencies. If the issue were the
constitutionality of these appointments, the issue would have
been raised before. On four occasions President George W. Bush
made intrasession appointments to the National Labor Relations
Many of us, frankly, disagreed with some of the decisions
that those board members supported. But we never questioned the
legitimacy of their appointment. We argued with the substance
of their opinions. That is the proper course to follow.
I would suggest, respectfully, a different title for this
hearing, which is not about the effect of the Noel Canning
decision on the NLRB, but the effect of collective bargaining
on the United States of America because that is really what is
at issue here.
Some of us believe that collective bargaining helps to
create and produce a strong middle class, and a strong middle
class helps produce a strong American economy. Others believe
that collective bargaining perhaps has a less positive or even
Here is the facts. In 2012 workers represented by a union
made about $10,000 a year more than workers not represented by
a union, $943 a week versus $742 a week. Workers represented by
a union were 71 percent more likely to have health insurance
provided by their employer than employees who did not work for
a union employer. Seventy-one percent of unionized workers had
a company pension plan. Forty-three percent of nonunionized
workers had a company pension plan.
Now, you may agree or disagree with that as economic policy
for the United States. We think that strong collective
bargaining yields a strong middle class which yields a strong
America. But even if you disagree with us, if you take a
different view, the venue to litigate that view is in the
statutory legislative process.
Change the law if you do not like it. It is in the
electoral process. Elect a president who will appoint members
to the board that you agree with, if you do not like it. And if
you think a decision is invalid, take it up through the courts
has been the case here. But it is not legitimate, it is not
consistent with our constitution to paralyze the decisions of
any agency simply because you disagree.
This hearing never took place when the majority was in
power before 2007 when George W. Bush--President George W. Bush
made intrasession appointments. I suspect that is because the
majority agreed with the people who were appointed.
Let us not confuse a principled, constitutional difference
with a good faith difference over public policy. Let us enact
an agenda that strengthens collective bargaining, strengthens
America's middle class. That is what I believe we should be
And I thank the chairman.
Chairman Roe. I thank the gentleman.
Pursuant to Committee Rule 7(c) all members will be
permitted to submit written statements to be included in the
permanent hearing record. And without objection the hearing
record will remain open for 14 days to allow such statements
and other extraneous material referenced during the hearing to
be submitted for the official record.
It is now my pleasure to introduce our distinguished panel
Mr. Lorber, welcome. I know you had to go through a
gauntlet to get here. We all do that. We should have brought
you through the garage. That is what I did this morning, so.
And Mr. Lorber is a member of the Proskauer law firm here in
Washington, D.C. And welcome.
Mr. Raymond LaJeunesse is the Vice President of Legal and
Director of the National Right to Work Legal Defense Foundation
in Springfield, Virginia. Welcome.
Ms. Elizabeth Reynolds is a member of the Allison, Slutsky
& Kennedy PC law firm in Chicago, Illinois. Welcome.
And Mr. Roger King is counsel at the Day Jones law firm in
Columbus, Ohio. He is testifying on behalf of the Chamber of
Commerce of the United States of America, and the Coalition for
a Democratic Workplace.
Before I recognize you--many of you have testified here
before. But before I recognize you for your testimony, let us
briefly go through the lighting system.
You have 5 minutes to present your testimony. When you
begin the light in front of you will turn green. With 1 minute
left it will turn yellow. And when your time is expired it will
turn red. At that point I will ask you to wrap up your remarks
as best you are able. And after everyone has testified members
will each have 5 minutes for questioning.
Now I will go ahead, and Mr. Lorber, if you would begin
STATEMENT OF LAWRENCE Z. LORBER,
MEMBER OF THE FIRM, PROSKAUER
Mr. Lorber. It is on. Chairman Roe and members of the
committee, I am delighted to be here and to testify on this
very important topic. My colleagues on this panel will discuss
some of the specifics of Noel Canning in great detail.
However, because of my background I thought that I might
add to the dialogue by discussing some decisions of the January
4th recess board, which suggests that this board may have
misunderstood the role the NLRB plays and the NLRA in the
interface between the myriad labor and employment laws which
employers must deal with.
In particular, I will discuss the implications of the
Banner Health Care System decision and the Fresenius
Manufacturing decision. Both of these decisions show a
surprising disregard of the necessity for the NLRB to interpret
the NLRA in a manner consistent with its own purposes, but at
the same time consistent with the related employment, labor,
and governance laws which impact the employment relationship.
The NLRA is one of a multitude of federal, state, and local
statutes which regulate various aspects of the employment
relationship. Indeed, the Supreme Court has long made it clear
and on multiple occasions that the National Labor Relations
Board must be cognizant of other employment and labor related
statutes when it interprets the NLRA.
As far back as 1942 in the Southern Steamship case, the
Supreme Court stated frequently the entire scope of
congressional purpose calls for careful accommodation of one
statutory scheme to another, and it is not too much to demand
of an administrative body that it undertake this accommodation
without excessive emphasis upon its immediate task.
Other Supreme Court decisions, including Hoffman Plastics
parroted that holding of the court and indeed in a case in
1979, the Detroit Edison case, the Supreme Court refused to
apply standard NLRB board jurisprudence when it did not
acquiesce in the provision to unions of employment test scores
and the employment test in order to preserve the
confidentiality of the tests and the confidentiality of the
individuals who took those tests.
I would note that the multiplicity of statutory employment
mandates was made quite clear to Congress when the Congress
passed and it had to implement the Congressional Accountability
Act in 1995, which applied then 11 and now 12 laws to the
Congress, employment laws.
I was one of the first board of director members appointed
by the leadership of Congress, and our task was not only to
adopt the various regulations. But also to work with the
congressional offices so that they might understand the
interplay between all of these laws and how, for example, they
had to deal with both the FMLA and the ADA. They had to deal
with OSHA and the Federal Labor Relations Act. There was
complexity then. That complexity is certainly there and then
some in the private sector.
Let me begin by talking about Banner Health Systems. Banner
was decided by the panel of Member Hayes who was confirmed by
Congress, and Members Griffin and Block, who were part of the
recess appointment package on January 4, 2012. In that decision
the board interpreted Section 7, which protects concerted
activity through mutual aid to preclude an employer from not
establishing a mandatory, but establishing a policy of keeping
ongoing investigations confidential until such time as those
investigations were concluded.
The board found that such a policy in effect constituted
almost a per se violation of Section 7. Instead the board
suggested, but did not enunciate several grounds for keeping an
ongoing investigation confidential. However, and perhaps most
confusing, the board further required that such individual
determinations be made at the outset of an investigation,
before any evidence is adduced and before the full scope of the
issue being investigated is clearly articulated.
The Banner Health--excuse me--decision is remarkable in
several aspects. First, and perhaps most troubling is that the
board, including two recess members, cavalierly established new
precedent and created new rights without any attempt to address
the significant conflict this holding would have on sister
employment, labor, corporate governance, and related laws.
Second, this decision was issued without reference to
longstanding board precedents, which seemingly recognize that
employers had multiple obligations to conduct investigations,
and that those investigations require discretion and
confidentiality. As articulated by the board in IBM Corp., the
possibility that information will not be kept confidential
greatly reduces the chance that the employer will get the whole
truth about a workplace event. It also increases the likelihood
that employees with information about sensitive subjects will
not come forward.
There is no question that Banner conflicts with policies
promulgated by sister agencies to the NLRB. For example, the
EEOC has long stated that confidentiality is a critical
requirement in conducting investigations, particularly
involving harassment. It has issued guidance to small
businesses to that effect. In addition, the ADA requires that
investigations be confidential. And as my testimony indicates,
several other statutes, including Sarbanes-Oxley, does the
These standards also are not unexceptional since the NLRB
case-handling manual itself provides that such investigations
and such evidence be kept confidential. And the board argued in
the Robbins Tire case that a case-by-case showing is neither
required nor practical.
Let me note at this point that Member Griffin, one of the
recess appointees, and on the panel which issued the Banner
holding, spoke at the ABA meeting in November in Atlanta. He
stated ``I am willing to listen to real justification for a
requirement of employee confidentiality, but not empty
rhetoric.'' Perhaps Member Griffin might reconsider the
statutory or regulatory obligations imposed on employers by
other laws as empty rhetoric.
Let me briefly discuss the----
Chairman Roe. Mr. Lorber, if you could wrap up----
Mr. Lorber. Yes, okay.
Chairman Roe [continuing]. After a few minutes.
Mr. Lorber. Well, the Fresenius decision follows this. In
that case and individual in a decertification contest sent
scurrilous, sexually demeaning, threatening correspondence to
female--to other employees. The ALJ found that this activity
was not protected by Section 7, and upheld the discharge of
The board reversed the ALJ, incredibly, finding that there
was in any election campaign that there would be some sort of
heated rhetoric. Nevertheless, this language, what he used was
not in a section, in an NLRA, in a decertification context
would have mandated that employer to investigate and terminate
that employee because of the EEOC rules.
Member Hayes pointed out that the board's decision simply
precluded other agencies from carrying out their function.
[The statement of Mr. Lorber follows:]
Prepared Statement of Lawrence Z. Lorber, Partner, Proskauer Rose LLP
Mr. Chairman, Members of the Subcommittee, I am delighted to appear
before you today on this very important topic--The Future of the NLRB:
What Noel Canning vs. NLRB Means for Workers, Employers, and Unions. I
am Lawrence Lorber, currently a partner in the Proskauer law firm and
co-chair of the firm's Washington Labor and Employment practice. During
my career I have held several positions which have enabled me to deal
with the interplay between these laws. I was a lawyer in the
Solicitor's Office at the US Department of Labor and then Executive
Assistant to the Solicitor. This was a time when there was a flurry of
additions to the labor and employment law catalogue including the
passage of OSHA, ERISA, the enhanced treatment of the affirmative
action and other obligations for government contractors and the
enactment of the Rehabilitation Act. In 1975 I was appointed Deputy
Assistant Secretary of Labor and Director of the Office of Federal
Compliance Programs. Since I have been in private practice, I have
dealt with a variety of labor and employment issues, many of which
dealt with enforcement and compliance with various statutes as well as
investigating charges brought by employees or the government agencies.
In 1991 I was counsel to the Business Roundtable in the discussions
which lead to the passage of the Civil Rights Act of 1991. And in 1995,
I was one of the five attorneys appointed by the Congressional
Leadership to the first Board of the Office of Compliance, which was
charged with the establishment of the Congressional Accountability Act.
For the past five years I have served as the Chair of the EEO
Subcommittee of the Labor Committee of the US Chamber of Commerce. My
testimony today is solely my own and I do not represent my firm, its
clients or any organization with which I have affiliations.
My colleagues on this panel will discuss some of the specifics of
Noel Canning in great detail. However, because of my background, it was
thought that I could add to the dialogue by discussing some decisions
of the January 4th Recess Board which suggest that this Board may have
misunderstood the role the NLRB plays and the NLRA in the interface
between the myriad labor and employment laws which employers must deal
with. In particular, I will discuss the implications of Banner Health
System d/b/a Banner Estrela Medical Center and James A. Navarro and
Fresenius USA Manufacturing and International Brotherhood of Teamsters,
Local 445. Both of these decisions show a surprising disregard of the
necessity for the NLRB to interpret the NLRA in a manner consistent
with its own purposes but at the same time consistent with the related
employment, labor and governance laws which impact the employment
The National Labor Relations Act is but one of a multitude of
federal, state and local statutes which regulate various aspects of the
employment relationship. Indeed, the Supreme Court has made it clear on
multiple occasions that the National Labor Relations Board must be
cognizant of other employment and labor related statutes when it
interprets the NLRA. In Southern Steamship Co. v NLRB, 316 US 31(1942),
the Court stated that ``* * * the Board has not been commissioned to
effectuate the policies of the Labor Relations Act so single-mindedly
that it may wholly ignore other and equally important Congressional
objectives. Frequently the entire scope of Congressional purpose calls
for careful accommodation of one statutory scheme to another, and it is
not too much to demand of an administrative body that it undertake this
accommodation without excessive emphasis upon its immediate task.
``(Emph. added) It is this holding, repeated in various cases following
Southern Steamship such as Boys Market v Retail Clerks, Local 770
(1970) and Hoffman Plastic Compounds v NLRB, 535 US 137 (2002) which
should establish the framework for the NLRB to fulfill its statutory
mandate. Too, the Supreme Court has refused to uphold a rote
application of standard NLRA Board jurisprudence when it would
interfere with legitimate concerns based upon professional standards or
other statutory commands such as the requirement that professional
standards for employment selection tests be respected, and
confidentiality of tests and scores be honored, see Detroit Edison Co.
v NLRB 440 US 301 (1979).
Indeed, the multiplicity of statutory employment mandates was made
clear to the Congress when it was faced with the implementation of the
Congressional Accountability Act, 2 USC 1301, et. seq. The
Accountability Act brought to Congress and Congressional Entities 12
civil rights, labor and workplace safety laws.\1\ As an appointed
member of the first Board of Directors of the Office of Compliance
charged with implementing the Accountability Act, we were faced with
the task of not only adopting implementing regulations but also
assisting the Congress with understanding and complying with these
laws, all at the same time. The frequent overlap between these laws,
such as complaints under OSHA and the interface with the FLRA or the
wage regulation found in the FLSA with the non-discrimination
requirements of Title VII or the interface between the FMLA and the ADA
made it clear that a key task we faced in the implementation stage was
to attempt to harmonize the statutes and bring the Congress into
compliance. This was not an easy task since none of the laws were given
primacy over the others.
\1\ The twelve civil rights, labor, and workplace safety laws
applied by the CAA include the Occupational Safety and Health Act of
1970; the Federal Labor Relations Act; Title VII of the Civil Rights
Act of 1964; the Americans with Disabilities Act; the Rehabilitation
Act of 1970; the Family and Medical Leave Act; the Fair Labor Standards
Act; the Age Discrimination in Employment Act; the Worker Adjustment
and Retraining Act; the Employee Polygraph Protection Act; and
veterans' employment and reemployment rights at Chapter 43 of Title 38
of the U.S. Code. The Act was amended in 1998 to include the provisions
of the Veterans Employment Opportunities Act.
I bring these cases and the experience of implementing the
Accountability Act in the context of this hearing as prelude to the
discussion of certain decisions reached by the January 4th NLRB and how
that body, whether properly constituted or not nevertheless has clearly
and perhaps arrogantly refused to acknowledge its basic task which is
to administratively interpret the NLRA in a manner consistent with the
other equally compelling workplace mandates while at the same time
insuring that its prime task in interpreting the NLRA itself in a
reasonable fashion is met.
Indeed, a close review of two decisions in particular will
illuminate the fact that this Board in particular has failed to adhere
to the Supreme Court's admonition in 1942 that it not ``ignore other
and equally important Congressional objectives''. Southern Steamship
Banner Health System d/b/a Banner Estrella Medical Center and James A.
Navarro 358 NLRB 93 (2012)
Banner Health was decided by the panel of Member Hayes,\2\ Member
Griffin,\3\ and Member Block.\4\
\2\ Confirmed by Congress--June 29, 2010
\3\ Recess Appointment January 4, 2012
\4\ Recess Appointment January 4, 2012
In that decision, the Board interpreted the Section 7 rights of
employees to engage in concerted activity for their mutual aid and
protection to prohibit an employer's policy of attempting to keep
ongoing investigations confidential until the investigation is
concluded. Member Hayes dissented in part noting that there was no hard
rule prohibiting the discussion of the ongoing investigation and
therefore that the Board's ruling was not supported by the facts. The
Board however held that any policy which purported to require ongoing
investigations be confidential even if such policy was intended to
protect the integrity of the investigation as found by the
Administrative Law Judge ran a foul of the dictates of Section 7.
Instead, the Board suggested but did not enunciate several grounds for
keeping an ongoing investigation confidential including whether any
witness needed protection, whether evidence was in danger of being
destroyed, or whether there was a need to prevent a cover-up. However,
the Board further required that such individual determination be made
at the onset of an investigation, before any evidence is adduced and
before the full scope of the issue being investigated is clearly
The Banner Health decision is remarkable in several aspects. First,
and perhaps most troubling is that the Board, including the two recess
members cavalierly established new precedent and created new rights
without any attempt to address the significant conflict this holding
would have on sister employment, labor, corporate governance and
related laws. Second, this decision was issued without reference to
long standing Board precedence which seemingly recognized that
employers had multiple obligations to conduct investigations and that
those investigations required discretion and confidentiality. As
articulated in IBM Corp, 341 NLRB 1288 (2004):
``The possibility that information will not be kept confidential
greatly reduces the chance that the employer will get the whole truth
about a workplace event. It also increases the likelihood that
employees with information about sensitive subjects will not come
forward.'' Id. at 1293.
There is no question that the Banner holding conflicts with
policies promulgated by sister agencies to the NLRB. For example, the
EEOC has long stated that confidentiality is a critical requirement in
conducting investigations, particularly involving harassment. The
potential for adverse consequences against an employee who raises
harassment issues or who cooperates in an investigation are
significant. Indeed, the EEOC's regulations make this clear:
An effective preventive program should include an explicit policy
against sexual harassment that is clearly and regularly communicated to
employees and effectively implemented. The employer should
affirmatively raise the subject with all supervisory and non-
supervisory employees, express strong disapproval, and explain the
sanctions for harassment. The employer should also have a procedure for
resolving sexual harassment complaints. The procedure should be
designed to ``encourage victims of harassment to come forward'' and
should not require a victim to complain first to the offending
supervisor. See Vinson, 106 S. Ct. at 2408. It should ensure
confidentiality as much as possible and provide effective remedies,
including protection of victims and witnesses against retaliation. 29
C.F.R. Sec. 1604.11(f). (emph added)
The EEOC has issued similar guidance in its Q & A to Small
employers on Harassment by Supervisors. The issue is not only relevant
to harassment investigations under Title VII. The ADA requires that
medical information gathered from employees for purposes of determining
whether a reasonable accommodation is appropriate or in investigating
an ADA complaint has validity must be kept confidential. 42 USC Sec.
12112(d)(3)(B). Similarly information gathered in course of compliance
with the FMLA which includes investigating harassment or retaliation
claims under that statute must be kept in separate confidential records
and cannot be disclosed. 29 CFR Sec. 825.500(g).
And outside of the employment context, the Sarbanes-Oxley Act
requires that covered employers with audit committees establish clearly
articulated procedures for ``(the) receipt, retention, and treatment of
complaints * * * and (B) the confidential, anonymous submission by
employees of the issuer of concerns regarding questionable accounting
or auditing matters.'' 15 USC Sec. 78j-1(m)(4)(B) (emph. added).
Remarkably, these standard and heretofore unexceptional precepts
for conducting investigations have been long followed by the NLRB
itself. The NLRB Case Handling Manual provides: ``In order to enhance
the confidentiality of the affidavit, instruct the witness not to share
the affidavit with anyone other than his or her attorney or designated
representative.'' Case3 Handling Manual, Section 10060.9. And in NLRB v
Robbins Tire and Rubber Co. 437 US 214 (1978), the NLRB argued that
that ``a particularized case-by-case showing is neither required not
practical, and that witness statements in pending unfair labor practice
proceedings are exempt as a matter of law from disclosure while a
hearing is pending.'' Id. at 222.
There is nothing unique about these requirements regarding
conducting investigations under these other statutes or the NLRB's own
case handling procedures. What is unique is the decision in Banner
Health System where the panel in that case decided to establish
separate rules for the handling of complaints under the NLRB and
establish that an employer will be deemed to violate the NLRA if it
follows these other statutory mandates and good investigatory practice
by asking that the investigation be treated as confidential until the
process is completed. Too, the ``lifeline'' suggested by the panel that
the employer must undertake a case by case analysis before starting the
investigation is completely without any logic. Until the investigation
is under way, facts found and witnesses identified, it would be
extremely difficult to determine what should or should not be kept
However what may be logical and self apparent is apparently not so
to the NLRB. Member Griffin, a member of the Banner Health panel spoke
recently at the ABA Labor Section meeting in Atlanta. The report of the
meeting included the following:
``Griffin told the ABA audience Banner Estrella did not hold that
an employer rule or requirement for confidentiality could never be
enforced. He added, however, that an employer must provide some
demonstration of a business necessity for confidentiality. * * *
Griffin said employers with similar rules (confidentiality of
investigations) or policies that failed to identify a specific business
need can expect that their requirements also ``can be struck down as
violative of Section 8(a)(1)'' of the NLRA.
``I'm willing to listen to real justification'' for a requirement
of employee confidentiality, Griffin said, ``but not empty rhetoric''.
Bloomberg BNA Daily Labor Report November 5, 2012.
Perhaps Member Griffin might reconsider calling the statutory or
regulatory obligations imposed on employers by other laws ``empty
Another decision issued by the same panel also deserves mention. In
Fresenius USA Manufacturing, Inc. and International Brotherhood of
Teamsters, Local 445 358 NLRB 138 (September 19, 2012, the NLRB was
faced with the situation where an employee during a decertification
campaign sent union Newspapers into an employee break room which
contained admitted scurrilous, sexually demeaning language and also
language which could have reasonably been construed as threatening.
Upon receiving complaints from female employees, the company
investigated the situation, as it was required to do under Title VII,
to determine who sent the newspapers and what was the intent. During
the investigation several female employees came forward and filed
statements that they found the newsletter writings vulgar, offensive,
and threatening. After first denying that he had anything to do with
the distribution of the newsletter, the employee subsequently admitted
that he sent the newsletter but that he did not intend the recipients
to react in the manner they did. The Administrative Law Judge noted
that while election campaigns can often engender harsh or heated
language, anonymous and facially demeaning and threatening language
does not rise to the level of protected activity. Therefore, the
Administrative Law Judge found that the discharge of the employee did
not violate the NLRA.
Incredibly, a majority of the panel, members Griffin and Block
reversed the ALJ and found the language and activities of the employee
sending anonymous improper language was protected activity. Again, this
Board has elevated the rights conferred by Sec. 7 to outweigh the
other protections afforded employees and obligations placed upon
employers. As Member Hayes stated in partial dissent:
``Taken as a whole, these pronouncements confer on employees
engaged in Section 7 activity a degree of insulation from discipline
for misconduct that the Act neither requires nor warrants. * * *
Notwithstanding their disavowals, my colleagues thereby impermissibly
fetter the ability of employers to comply with the requirements of
other labor laws and to maintain civility and order in their workplace
by maintaining and enforcing rules nondiscriminatorily prohibiting
abusive and profane language, sexual harassment, and verbal, mental,
and physical abuse.''
The issue raised in these two decisions, as well as others by the
Board consisting of a majority of members appointed on January 4, 2012,
seems to suggest a view that the NLRA is not part of a mosaic of labor
and employment laws designed to deal with sophisticated employment
issues but rather that it stands alone, not impacted by these other
laws and unaffected by judicial precedent or frankly common reason.
Chairman Roe. Mr. LaJeunesse?
STATEMENT OF RAYMOND J. LAJEUNESSE, JR., VICE PRESIDENT AND
LEGAL DIRECTOR, NATIONAL RIGHT TO WORK LEGAL DEFENSE
Mr. LaJeunesse. Chairman Roe and members, under the
National Labor Relations Act employees who do not want union
representation must accept the bargaining agent the majority of
the employees in the bargaining unit select. Then, if not in a
right-to-work state, and their employer and the union agree,
the law forces them to pay fees equal to union dues for that
unwanted representation, or be fired.
Union dues are spent for politics and other non-bargaining
purposes. In Communications Workers vs. Beck, the Supreme Court
ruled that under the act employees cannot be compelled to
subsidize unions' political and other non-bargaining
activities. Employees must overcome many hurdles to exercise
that right, hurdle sanctions or erected by the National Labor
My written statement details how the board and its general
counsels have failed to process expeditiously and procedurally
impeded charges of Beck violations. Here I address the worst
instances of the board's refusal to follow judicial precedent.
The most significant procedural hurdles to workers'
exercise of Beck rights are union requirements that objections
be submitted during short window periods and be renewed
annually, obstacles approved from the board's first post-Beck
decision. Thus, many employees' objections are rejected as
Affirmative consent, not objection to political funding,
should be required, as the Supreme Court recently held in Knox
v. SEIU as to special assessments. At a minimum, Beck
objections should be continuing.
After three courts so held, the board reconsidered. But
instead of finding annual objection requirements per se
unlawful, it decided to evaluate them union-by-union. A board
majority upheld the UAW's annual objection requirement without
even considering its purported justifications, finding that the
burden on non-members was de minimis.
Another hurdle non-members face is finding out how the
union spends their fees so they can decide whether to object.
In Teachers Local 1 v. Hudson, the Supreme Court held that
``potential objectors must be given sufficient information to
gage the propriety of the union's fee.''
Yet, the board ruled that unions need not disclose any
financial information until after non-members object. Although
the D.C. Circuit reversed, the board continues to follow its
Hudson also specified that ``adequate disclosure surely
would include verification by an independent auditor.'' Yet,
unions often do not give objecting non-members and auditors
verification. The current recessed board recently approved that
practice, despite the D.C. circuit's earlier contrary holding.
The board majority argued that union's conduct under Beck
is properly analyzed under the duty of fair representation, not
a heightened First Amendment standard, as in public sector
cases such as Hudson. But the D.C. Circuit had previously ruled
that Hudson's holdings apply ``equally to the statutory duty of
The board also refuses to follow binding precedent as to
what activities are lawfully chargeable. In Beck, the court
concluded that the forced fee provisions of the National Labor
Relations Act and the Railway Labor Act are ``statutory
equivalents.'' Moreover, Beck ruled that decisions limiting
forced fees under the Railway Labor Act are ``controlling''
under the National Labor Relations Act.
In Ellis v. Railway Clerks the Supreme Court held that
union organizing is not lawfully chargeable under the RLA. In
Beck the Fourth Circuit followed Ellis in ruling that
organizing expenditures were not allowable charges.
Despite the Supreme Court's clear mandate that RLA
decisions concerning forced union fees control under the NLRA,
the Board held that organizing within the same competitive
market is chargeable to non-members because of differences as
to other aspects of the two statutes.
The current board went even further. A majority holding
chargeable, as the chairman mentioned, lobbying for goals that
are germane to collective bargaining in that majority's view.
Worse, it proposed a rebuttable presumption of germaneness
for bills that would directly affect subjects of collective
bargaining. The majority again ignored the Supreme Court's
holding that RLA decisions are controlling.
Machinists v. Street was the first Supreme Court case to
limit forced union fees. Where Street held that the RLA does
not authorize unions to use objecting employees' exacted funds
to support political causes, a footnote listed lobbying as a
use of union funds for political purposes.
In Knox the union contended, like the board majority, that
expenditures to defeat a ballot proposition were germane
because the proposition would have affected bargaining
The Supreme Court disagreed. ``If we were to accept this
broad definition of germaneness, it would effectively
eviscerate the limitation on the use of compulsory fees to
support unions' controversial political activities.'' In an RLA
case the D.C. Circuit similarly rejected the same argument as
The board majority also ignored NLRA precedent. The D.C.
Circuit has held that under the act the ``Beck and Ellis
holdings foreclosed the exaction of mandatory agency fees for
In some the problem is systemic. The board has abysmally
failed to protect workers' Beck rights. Indeed, the current
board seems bent on totally eviscerating those rights.
Non-members' Beck rights are first amendment type
interests. As such they deserve effective protection.
Experience since Beck demonstrates that only statutes that
prohibit compulsory union fees, i.e., right to work laws,
effectively protect employees from being forced to subsidize
union, political and other non-bargaining activities.
Thank you very much.
[The statement of Mr. LaJeunesse follows:]
Prepared Statement of Raymond J. LaJeunesse, Jr., Vice President &
Legal Director, National Right to Work Legal Defense Foundation, Inc.
Chairman Roe and distinguished Members of the Committee: Thank you
for the opportunity to testify today.
My name is Raymond LaJeunesse. I am Vice President and Legal
Director of the National Right to Work Legal Defense Foundation. Since
the Foundation was founded in 1968, it has provided free legal aid to
workers in almost every case litigated concerning the rights of workers
not to subsidize union political and other nonbargaining activities.
The most famous of these cases is Communications Workers v. Beck.\1\
I have worked for the Foundation for more than forty years. I have
represented tens of thousands of employees in cases like Beck, many of
which were class actions. I was the lead counsel for the plaintiff
workers in three such cases that I argued in the United States Supreme
I commend you for investigating the adequacy of the National Labor
Relations Board's enforcement of the individual worker rights Beck
recognized as intended by Congress. Implementation of Harry Beck's
victory in the Supreme Court is a serious problem. Many American
workers are forced, due to a unique privilege Congress granted unions
in the National Labor Relations Act, to contribute their hard-earned
dollars to political and ideological causes they oppose.
At issue are union dues and agency fees collected from workers
under threat of job loss. These monies, under federal election law, are
lawfully used for registration and get-out-the-vote drives, candidate-
support among union members and their families, independent
expenditures concerning for or against candidates directed to the
general public, administration of union political action committees,
lobbying, and issue advocacy. These political expenditures by unions
that must file financial reports with the Department of Labor amount to
more than a billion dollars in a two-year election cycle.\2\
Under the National Labor Relations Act, employees who never
requested union representation must accept the bargaining agent
selected by the majority in their bargaining unit. Then, if not in a
Right to Work state, and their employer and monopoly bargaining agent
agree, the law forces these employees to pay fees equal to union dues
for that unwanted representation, or be fired.
The evil inherent in compelling workers to subsidize a union's
political and ideological activities is apparent. As Thomas Jefferson
eloquently put it, ``'to compel a man to furnish contributions of money
for the propagation of opinions which he disbelieves, is sinful and
tyrannical.' '' \3\ Preventing that evil, however, is difficult under
In dissenting from the Supreme Court's first ruling on this
problem, in Machinists v. Street, the late Justice Hugo Black
articulated the difficulty well. To avoid constitutional questions, the
Court held that the Railway Labor Act prohibits the use of forced union
dues and fees for political and ideological purposes.
However, the Court's majority held that the employees' remedy was
merely a reduction or refund of the part of the dues used for politics.
Justice Black exposed that remedy's fatal flaw:
It may be that courts and lawyers with sufficient skill in
accounting, algebra, geometry, trigonometry and calculus will be able
to extract the proper microscopic answer from the voluminous and
complex accounting records of the local, national, and international
unions involved. It seems to me * * * however, that * * * this formula
with its attendant trial burdens promises little hope for financial
recompense to the individual workers whose First Amendment freedoms
have been flagrantly violated.\4\
Following Street, the Supreme Court's later Beck decision ruled
that employees covered by the National Labor Relations Act also cannot
lawfully be compelled to subsidize unions' political, ideological, and
other nonbargaining activities. That decision should have paved the way
for all private-sector employees to stop the collection of dues for
anything other than bargaining activities.
However, like Street, Beck is not self-enforcing. Experience shows
that Justice Black was correct. Without the help of an organization
like the Foundation, no employee, or group of employees, can
effectively battle a labor union and ensure that they are not
subsidizing its political and ideological agenda. Even with the rulings
in Beck and related cases, the deck is stacked against individual
employees. And, even with the help of the Foundation, which cannot
assist every worker who wants to exercise Beck rights, complicated and
protracted litigation often is necessary to vindicate those rights.
Employees must overcome many hurdles to exercise their Beck rights.
Unfortunately, many of those hurdles have been sanctioned or,
worse, thrown up by the National Labor Relations Board. To be blunt,
the NLRB has failed to enforce Beck vigorously, both in processing
cases and applying judicial precedent.
That problem has gotten even worse under the current Board, which
the D.C. Circuit last month held in Noel Canning v. NLRB does not have
a constitutionally valid quorum.\5\
Since the Supreme Court decided Beck in 1988, the NLRB's General
Counsel, its Regional Offices, and the Board have failed to process
expeditiously unfair labor practice charges of Beck violations.
Significantly, in 1994 the General Counsel's Office instructed all
Regional Directors to dismiss immediately Beck charges they found
unworthy, and not to issue complaints on worthy Beck charges, but to
submit them to the Division of Advice in Washington, D.C.\6\ That was
circumstantial evidence that the then
General Counsel intended to delay the processing of Beck charges or
spike as many as possible. As recently as 2011, current Acting General
Counsel Lafe Solomon instructed Regional Directors that several Beck
issues must be submitted to the Division of Advice, ``because there is
no governing precedent or * * * [they] involve a policy issue in which
I am particularly interested.''\7\
The Board delayed for eight years before it issued its first post-
Beck decision, California Saw & Knife Works.\8\ Many other Beck cases
languished before the Board for similar lengthy periods. The then NLRB
Chairman admitted that at the end of July 1997 the sixty-five oldest
cases then before the Board included twenty-one Beck cases.\9\ The
Board later issued decisions in some of those cases only after the
objecting workers petitioned for mandamus from the D.C. Circuit.\10\
Many Beck cases do not even reach the Board. The General Counsel
has settled many Beck charges with no real relief for the employees.
The Board's Regional Directors have refused to issue complaints and
dismissed many other charges at the General Counsel's direction.
In 1998, the then Acting General Counsel set up yet another
roadblock. He instructed Regional Directors that Beck charges must be
dismissed unless the nonmember ``explain[s] why a particular
expenditure treated as chargeable in a union's disclosure is not
chargeable * * * and present[s] evidence or * * * give[s] promising
leads that would lead to evidence that would support that
assertion.''\11\ Regional Directors follow this instruction to this
It is impossible for nonmembers to provide evidence or leads to
evidence at the charge stage, because nonmembers do not have access to
the union's financial and other records. The General Counsel's rule is
also contrary to the Supreme Court's admonition that ``the union bears
the burden of proving what proportion of expenditures went to
activities that could be charge to dissenters * * *.''\13\
The Board itself has given workers little protection and relief
when it finally decides Beck cases, in many instances refusing to
follow what should be controlling Supreme Court and U.S. Court of
Unions have a legal duty to inform workers that they have a right
not to join and, if they do not join, a right not to subsidize the
union's political and other nonbargaining activities.\14\ One major
obstacle to the exercise of Beck rights is the obscure manner in which
the NLRB permits unions to notify employees of their rights not to join
and not to subsidize union political activity.
When unions give such notice, they often hide it in fine print
inside union propaganda that dissenting workers find offensive and,
therefore, do not read. An egregious, but typical, example of that
practice was approved by the Board in the very first post-Beck case it
decided, California Saw.\15\ In that case the Machinists union
published its notice of Beck rights ``on the sixth page of [an] eight-
page newsletter.'' The first page of that newsletter was ``largely
occupied by an article about Democratic Presidential hopefuls.'' The
newsletter also contained ``a number of other political articles * * *,
all with a strong Democratic bias.''\16\ That is hardly notice designed
to come to the attention of employees who oppose the union's political
activities, yet the Board still follows this outrageous ruling today.
Workers who do not want their compulsory dues and fees used for
political purposes must negotiate technical procedural hurdles that
unions have errected.
The most significant are the requirements, imposed by most unions,
that Beck objections be submitted during a short ``window period''--
typically a month or less--and be renewed every year. In California
Saw, the NLRB approved both of these obstacles to the exercise of Beck
rights.\17\ As a result, many employees are forced to pay for union
political activities, because their objections are considered untimely
under union rules.
Why should constitutional rights be available only once a year?
Employees should be free to stop subsidizing union political activity
whenever they discover that the union is using their monies for
purposes they oppose, not just during a short, arbitrary ``window
period.'' Indeed, as the Supreme Court recently asked in Knox v. SEIU
Local 1000, ``[o]nce it is recognized * * * that a nonmember cannot be
forced to fund a union's political or ideological activities, what is
the justification for putting the burden on the nonmember to opt out of
making such a payment?''\18\ Affirmative consent to such funding should
be required, not objection, as the Knox Court held with regard to
Certainly, if objection is required at all, workers should be free
to make Beck objections that continue in effect until withdrawn, just
as union membership continues until a resignation is submitted. After
three federal courts declined to follow the Board on this issue,\19\
the Board reconsidered. But, instead of finding that annual objection
requirements are per se unlawful, the Board decided to evaluate those
requirements on a union-by-union basis ``to determine `whether the
union has demonstrated a legitimate justification for an annual renewal
requirement or otherwise minimized the burden it imposes on potential
objectors.' '' \20\
Applying that loose standard, a Board majority upheld the UAW's
annual objection requirement in 2011 without even considering the
union's purported justifications for it, finding that the burden that
the requirement imposed on nonmembers was ``de minimis.''\21\ However,
as Member Hayes said, dissenting, the burden of objection under the
UAW's scheme ``is plainly and decidedly not de minimis,'' because
objecting employees still must undertake the affirmative task of
writing and mailing a statement of continued objection each year; they
must remember to do so before their 1-year objector term expires; and,
if they fail to timely renew their objection, they will automatically
incur the obligation of paying a full agency fee, including funds for
expenditures * * * for nonrepresentational purposes, for some period of
Another procedural hurdle nonmembers face is finding out how the
union spends their fees so that they can intelligently decide whether
to object. In Teachers Local 1 v. Hudson, the Supreme Court held that
``potential objectors [must] be given sufficient information to gauge
the propriety of the union's fee.''\23\ Yet, the NLRB ruled in the
Penrod case that unions need not disclose any financial information to
nonmembers until after they object.\24\ Despite being reversed by the
D.C. Circuit, the Board continues to follow its Penrod ruling.\25\
The Supreme Court also specified in Hudson that ``adequate
disclosure surely would include the major categories of expenses, as
well as verification by an independent auditor.''\26\ Yet, when unions
give objecting employees financial disclosure, they often do not give
them an auditor's verification. The current Board approved that
practice in United Nurses & Allied Professionals, in which the union
merely told objecting nonmember Jeanette Geary that a certified public
accountant had verified its major categories of expenses.\27\
The Board majority in United Nurses explicitly declined to follow a
directly contrary holding of the Ninth Circuit, Cummings v.
Connell.\28\ The majority, including two purported Members whose
appointments were held invalid in Noel Canning, argued that unions'
conduct under Beck ``is properly analyzed under the duty of fair
representation,'' not ``a heightened First Amendment standard'' as in
public-sector cases such as Hudson and Cummings.\29\ However, the D.C.
Circuit had already that argument in an earlier Board case.
In Ferriso v. NLRB, the D.C. Circuit reversed the Board's ruling
that unions need not provide an objecting nonmember ``with an
independent audit of their major categories of expenditures.''\30\ The
Ferriso court explicitly reaffirmed its earlier holding in Abrams v.
Communications Workers that Hudson's holding on notice and objection
``procedures applies equally to the statutory duty of fair
representation.''\31\ Regrettably, it is the Board's practice ``to
ignore precedent from federal appellate courts in favor of its own
interpretations'' of the law.\32\
In reversing the Board in Ferriso, the D.C. Circuit explained why
``[b]asic considerations of fairness'' \33\ require disclosure to
objecting employees of an independent audit of a union's calculation of
its chargeable expenses: ``nonmembers cannot make a reliable decision
as to whether to contest their agency fees without trustworthy
information about the basis of the union's fee calculations, and * * *
an independent audit is the minimal guarantee of trustworthiness.''\34\
The Board also has refused to follow Supreme Court precedent as to
what activities are lawfully chargeable to objecting nonmembers. In
Beck, the Court concluded ``that Sec. 8(a)(3) [of the NLRA], like its
statutory equivalent, Sec. 2, Eleventh of the RLA, authorizes the
exaction of only those fees and dues necessary to `performing the
duties of an exclusive representative of the employees in dealing with
the employer on labor-management issues,''' quoting Ellis v. Railway
Clerks.\35\ Moreover, Beck ruled that decisions in this area of the law
under the RLA are ``controlling'' under the NLRA.\36\
In Ellis, the Supreme Court held that union organizing is not
lawfully chargeable under the RLA, because it has only an ``attenuated
connection with collective bargaining.''\37\ In Beck itself, the Fourth
Circuit followed Ellis in ruling that organizing expenditures ``were
not allowable charges against the objecting employees.''\38\ Despite
the Supreme Court's clear mandate in Beck that decisions concerning
forced union fees under the RLA are controlling under the NLRA, the
Board has held that ``organizing within the same competitive market''
is chargeable to objecting nonmembers under the NLRA because of
differences as to other aspects of the two statutes.\39\
The current Board further eviscerated employees' Beck rights in
United Nurses. There the majority held that ``[s]o long as lobbying is
used to pursue goals that are germane to collective bargaining,
contract administration, or grievance adjustment, it is chargeable to
objectors,'' even if the bills lobbied ``would not provide a direct
benefit to members of the'' objectors' bargaining unit.\40\ Worse, the
majority, two of whom were unconstitutionally appointed, proposed a
``rebuttable presumption of germaneness'' for legislation, such as
minimum wage legislation, that ``would directly affect subjects of
The United Nurses majority thus again ignored the Supreme Court's
Beck holding that decisions concerning forced union fees under the RLA
are controlling under the NLRA. Street was the very first case to
decide what limits the RLA imposes on forced union fees. At the very
point at which the Supreme Court held that the RLA does not authorize
unions to use objecting employees' ``exacted funds to support political
causes,'' the Court inserted a footnote that lists ``lobbying purposes,
for the promotion or defeat of legislation,'' as a ``use of union funds
for political purposes.''\42\
In Miller v. Airline Pilots Ass'n, the union, like the Board
majority in United Nurses, contended that under the RLA lobbying
government agencies concerning ``issues that animate much of its
collective bargaining * * * should be regarded as germane to that
bargaining.''\43\ The D.C. Circuit emphatically rejected that argument:
``if the union's argument were played out, virtually all of its
political activities could be connected to collective bargaining; but
the federal courts, including the Supreme Court, have been particularly
chary of treating as germane union expenditures that touch the
The Supreme Court made the same point itself last year in Knox.
There a state employee union contended that its expenditures to defeat
a ballot proposition were ``germane'' because the proposition would
have affected future implementation of its bargaining agreements The
Court rejected that argument: ``If we were to accept this broad
definition of germaneness, it would effectively eviscerate the
limitation on the use of compulsory fees to support unions'
controversial political activities.''\45\
The United Nurses Board majority also ignored what should have been
dispositive precedent under the NLRA. In Abrams v. Communications
Workers, the D.C. Circuit noted that the union's Beck notice to
nonmembers ``lists `legislative activity' and `support of political
candidates' as non-chargeable expenses.'' The court agreed that the
``Beck and Ellis holdings foreclose the exaction of mandatory agency
fees for such activities'' and, consequently, held that the notice was
inadequate because it contained other ``language which might lead
workers to conclude that such activities are chargeable.''\46\
In sum, there is a systemic problem. Since Beck was decided in
1988, the National Labor Relations Board has dismally failed to protect
adequately the statutory rights of workers not to subsidize union
political, ideological, and other nonbargaining activities. Indeed, the
current Board, despite its lack of a constitutional quorum, seems bent
on totally eviscerating those rights.
As the D.C. Circuit has recognized, nonmembers' Beck rights are
``First Amendment-type interests.''\47\ As such, they deserve effective
protection. The only federal labor statutes that effectively protect
those fundamental rights are the Federal Labor Relations Act and the
statute that covers postal employees, both of which prohibit agreements
that require workers to join or pay union dues to keep their jobs.\48\
The National Right to Work Act, S. 204, introduced by Senator Rand Paul
on January 31, 2013, would provide the same effective protection for
employees covered by the National Labor Relations Act.
\1\ 487 U.S. 735 (1988).
\3\ Quoted in Abood v. Detroit Bd. of Educ., 431 U.S. 209, 234 n.31
\4\ 367 U.S. 740, 795-96 (1961).
\5\ 2013 WL 276024 (D.C. Cir. Jan. 25, 2013).
\6\ NLRB Mem. OM 94-50 (June 13, 1994).
\7\ NLRB Mem. GC 11-11 (Apr. 12, 2011).
\8\ 320 N.L.R.B. 224 (1995), enforced sub nom. Machinists v. NLRB,
133 F.3d 1012 (7th Cir.1998).
\9\ Letter from Chairman Gould to Rep. Tom Lantos (Oct. 15, 1997),
\10\ E.g., In re Weissbach, No. 98-1301 (D.C. Cir. Nov. 24, 1998).
\11\ NLRB Mem. GC 98-11, at 5 (Aug. 17, 1998).
\12\ E.g., Teamsters Local 974, No. 18-CB-082853. letter from
Regional Director Osthus to Foundation Staff Attorney John Scully (July
27, 2012), at 1.
\13\ Ellis v. Railway Clerks, 466 U.S. 435, 457 n.15 (1984).
\14\ See Marquez v. Screen Actors Guild, 525 U.S. 33, 43 (1998).
\15\ 320 N.L.R.B. at 234-35.
\16\ Machinists v. NLRB, 133 F.3d 1012, 1018 (7th Cir. 1998).
\17\ 320 N.L.R.B. at 235-36.
\18\ 132 S. Ct. 2277, 2290 (2012) (5-4 decision).
\19\ Seidemann v. Bowen, 499 F.3d 119, 124-26 (2d Cir. 2007); Shea
v. Machinists, 154 F.3d 508 (5th Cir. 1998); Lutz v. Machinists, 121 F.
Supp. 2d 498 (E.D. Va. 2000).
\20\ UAW Local #376, 356 N.L.R.B. No. 164, slip op. at 1 (2011) (2-
1 decision) (quoting Machinists Local Lodge 2777, 355 N.L.R.B. No. 174,
slip op. at 1 (2010) (3-2 decision)).
\21\ Id., slip op. at 3.
\22\ Id., slip op. at 4.
\23\ 475 U.S. 292, 306 (1986) (emphasis added).
\24\ Teamsters Local 166, 327 N.L.R.B. 950, 952 (1999), petition
for review granted sub nom. Penrod v. NLRB, 203 F.3d 41 (D.C. Cir.
2000); see California Saw, 320 N.L.R.B. at 233.
\25\ E.g., United Food & Commercial Workers Local 700, No. 25-CB-
8896, JD-14-08, slip op. at 6 (Mar. 7, 2008).
\26\ 475 U.S. at 307 n.18 (emphasis added).
\27\ 359 N.L.R.B No. 42, slip op. at 1-4 (Dec. 14, 2012) (3-1
\28\ 316 F.3d 886 (9th Cir. 2003).
\29\ 359 N.L.R.B. No. 42, slip op. at 2-3.
\30\ 125 F.3d 865, 866-70 (D.C. Cir. 1997).
\31\ 59 F.3d 1373, 1379 & n.7 (D.C. Cir. 1995); accord Ferriso, 125
F.3d at 868-70.
\32\ Mary Thompson Hosp., Inc. v. NLRB, 621 F.2d 858, 864 (7th Cir.
\33\ Hudson, 475 U.S. at 306.
\34\ 125 F.3d at 869-70 (citations omitted).
\35\ 487 U.S. at 762-63 (quoting Ellis v. Railway Clerks, 466 U.S.
435, 448 (1984)) (emphasis added).
\36\ Id. at 745 (emphasis added).
\37\ 466 U.S. at 451-53.
\38\ Beck v. Communications Workers, 776 F.2d 1187, 1211 (1985),
aff'd on other grounds en banc, 800 F.2d 1280 (4th Cir. 1986), aff'd,
487 U.S. 735 (1988).
\39\ United Food & Commercial Workers Locals 951, 7 & 1036, 329
N.L.R.B. 730, 733-38 (1999) (4-1 decision), enforced in pertinent part,
307 F.3d 760 (9th Cir. 2002).
\40\ 359 N.L.R.B. No. 42, slip op. at 5-8.
\41\ Id., slip op. at 9.
\42\ Machinists v. Street, 367 U.S. 740, 769 & n.17 (1961).
\43\ 108 F.3d 1415, 1422 (D.C. Cir. 1997), aff'd on other grounds,
523 U.S. 866 (1998).
\44\ Id. at 1422-23.
\45\ 132 S. Ct. at 2294-95; accord id. at 2296-97 (Sotomayor, J.,
concurring in pertinent part).
\46\ 59 F.3d 1373, 1380 (D.C. Cir. 1995) (emphasis added).
\47\ Miller, 108 F.3d at 1422.
\48\ See 5 U.S.C. Sec. 7102 (guaranteeing federal employees the
right to refrain from ``form[ing], join[ing], or assist[ing] any labor
organization''); 39 U.S.C. Sec. 1206(c) (same for postal employees).
Chairman Roe. Thank you.
STATEMENT OF N. ELIZABETH REYNOLDS, MEMBER OF THE FIRM,
ALLISON, SLUTSKY AND KENNEDY, P.C.
Ms. Reynolds. Chairman Roe, Ranking Member Andrews and
members of the committee and the subcommittee, thank you for
your invitation to appear here today. My name is Elizabeth
Reynolds, and I am a shareholder in the law firm of Allison,
Slutsky & Kennedy, P.C. in Chicago, Illinois.
Since joining the firm in 1998 I have represented unions
and workers in diverse industries from hospitality to trucking,
including numerous cases at the National Labor Relations Board.
I am honored to be asked to talk to our congressional
representatives about the board. But I am sorry that this
opportunity comes in the context of a sustained series of
attacks on the board by special interests who do not have the
wellbeing of American workers at heart.
As a citizen I am troubled that this committee and
subcommittee have held a total of nine oversight hearings
concerning the NLRB in 2 years, spending the public's time and
resources on those hearings when all the agency has done is
fulfill its statutory duty.
The NLRB is a small, independent agency responsible for
enforcing the National Labor Relations Act. Its main functions
are administering representation election to determine whether
employees want or do not want to be represented by a union and
investigating and prosecuting charges against both employers
and employees when they violate the NLRA.
The NLRB by statue has five members. Their terms are
staggered so that one expires each year. The Supreme Court
ruled in 2010 that the NLRB cannot act without a quorum of
Some in the Senate have responded to that ruling by
blocking all nominations to the board for the stated purpose of
shutting it down. These tactics further the agenda of powerful
special interests who would rather not have the nation's labor
laws enforced at all.
On January 3, 2012 the expiration of a board member's term
left the NLRB with only two members, a Democrat and a
Republican, and thus with no quorum. The next day President
Obama recess appointed three new members, two Democrats and one
Republican, following the long bipartisan tradition of filling
the board with three members of the president's party and two
members of the other party.
From 1980 to present there have been 29 recess appointments
to the NLRB. Under the D.C. Circuit's interpretation of the
recess appointments clause in the Noel Canning decision, 25 of
those appointments would be invalid; 14 by Republican
presidents and 11 by Democratic presidents.
In fact, President George H.W. Bush's appointment of Alan
Greenspan to the Federal Reserve Board would be invalid
according to the D.C. Circuit's reasoning. Where was the
outrage when President Carter, President Reagan, President
Bush, President Clinton and President Bush made those 25 recess
appointments to the NLRB, as well as hundreds of recess
appointments to other positions?
Three other federal courts of appeals have held that recess
appointments under such circumstances are valid, but since the
D.C. Circuit's decision in Noel Canning, some in Congress are
now contending that the board should cease operations. That is
like suggesting that the police should stop enforcing the law
because one court has held it unconstitutional when three other
courts have already held the law as constitutional.
The board has a statutory responsibility to enforce the
National Labor Relations Act. The board is following its
longstanding policy of continuing to apply its ruling in order
to maintain a uniform national labor policy when the circuit
courts disagree and the Supreme Court has not yet spoken.
One panel of judges cannot shut down an agency created by
Congress and leave employees and employers with no one to
enforce the rights and the laws that protect them. But
predictably parties are seeking to avoid compliance with board
orders by taking advantage of the Noel Canning decision to put
their cases on indefinite hold in the D.C. Circuit.
As a local labor lawyer I am very concerned about the
results that this delay will have on real people. One such case
that the D.C. Circuit has put on hold was handled by our firm.
The board found unanimously, including Republican member Brian
Hayes, said that the employer illegally discriminated against a
longtime printing company employee for his union activities and
fired him on a pretext.
The employee, Marcus Hedger, was a union steward, which
meant that he assisted his coworkers with their grievances and
he sat on the union's bargaining committee. During some
contentious negotiations the employer's vice president told Mr.
Hedger that he was tired of this ``union circus'' and that ``we
are watching you, we are going to catch you and we are going to
fire you.'' Shortly after, Mr. Hedger was fired.
The unanimous board, including Republican member Hayes
ruled that the firing was illegal and ordered the company to
reinstate Mr. Hedger with lost earnings.
This is a straightforward case where the board agreed
across party lines. But now while the board's decision sits on
hold, Mr. Hedger is working an entry-level job at a fraction of
what he used to earn, and he has lost his house. Scenarios like
this will be repeated around the country as a result of the
Noel Canning decision.
I will be happy to address the board's recent decisions
during the question period if the committee members wish. But
since my time is just about out I would like to conclude by
saying that the workers are worried about their jobs and the
board is not part of the problem. The board is part of the
After the National Labor Relations Act was passed, our
nation enjoyed decades of prosperity because collective
bargaining allowed workers to negotiate for good, middle class
jobs. Those who seek to shut down the board--and that is what
this hearing is about; make no mistake--are serving the narrow
interests of the 1 percent. Without job security and fair pay
for the 99 percent, our nation cannot prosper as a whole. Thank
[The statement of Ms. Reynolds follows:]
Chairman Roe. Thank you, Ms. Reynolds.
STATEMENT OF G. ROGER KING, OF COUNSEL, JONES DAY, TESTIFYING
ON BEHALF OF THE U.S. CHAMBER OF COMMERCE AND THE COALITION FOR
A DEMOCRATIC WORKPLACE
Mr. King. Thank you, Chairman. I appreciate the opportunity
to again appear before this committee. Ranking Member Andrews,
it is nice to see you again. Chairman Kline, we appreciate you
sitting in on the committee hearing today also.
As noted, I appear here today on behalf of the Chamber of
Commerce of the United States and the Coalition for Democratic
Workplace. Those organizations go well beyond the so-called 1
They represent millions of businesses throughout this
country, many small and independent business entities, millions
of workers, millions of people that keep this economy moving
every day. They certainly are not small special interest
groups. They are at the heart of this economy and this country.
With me today are colleagues from my firm that have been
deeply involved in representing the Chamber and the CDW, Noel
Francisco, James Burnham, Scott Metzger and Anthony Dick. We
are quite involved in this case, the Noel Canning decision I am
going to talk about today, Mr. Francisco successfully argued
the case before the D.C. Circuit.
I would like to make one thing clear right at the outset.
Yes, we are talking about the National Labor Relations Board.
But we are also talking about the United States Constitution.
The fundamental principle, separation of powers, I would
submit, must prevail over any peripheral concern of a
government efficiency. We may have our differences here about
the board, but the Constitution does not yield to the
efficiencies of government the Constitution should control.
Now, I want to talk about the Noel Canning case in a little
different manner. Many observers have not really focused on the
facts of this case. What this president did is unprecedented.
No president, Democrat or Republican has ever made a recess
appointment to any agency or a court within a 3-day period
where the Senate has been in a brief hiatus. No president
anywhere at any time has done that.
In fact, what the D.C. Circuit held was consistent with the
position that Senator Ted Kennedy took on a judgeship that was
contested in the 11th circuit, Judge Pryor. So, let us be clear
about this. This cuts across Democrat/Republican lines. This is
a constitutional issue of great consequence.
Here the Senate was continually in session. It was gaveling
in and out every 3 days. In fact, the day before the president
made the recess appointments that are being contested, the
Senate had gaveled in for purposes of the 20th amendment to
convene the second session of the 112th Congress.
Further, during this same contested period, the Senate
passed the extension of the payroll tax reduction, or temporary
tax reduction. So, the Senate is clearly doing business during
this time period.
Now, this so-called 3-day situation goes back really to
Senator Robert Byrd, in part. And I would submit that he
perhaps is the father of this so-called pro forma session. I
happened to be working in the Senate at the time as a young
lawyer and I really admired Senator Byrd, albeit I was working
for Senator Taft at the time.
And what Senator Byrd did is clearly point out to both his
colleagues in the legislative branch and the executive branch
that while the Senate is in session, and particularly during a
3-day brief hiatus, that the president, at that point President
Reagan, had no authority under the Constitution to make a
The Department of Justice, the president's legal advisors,
President Reagan at the time, the Senate at the time all
agreed. That concept of constitutional restraint, executive
restraint and check and balance by the Senate was then carried
further by Senator Harry Reid.
You may recall that Senator Reid utilized the same
procedure to keep the Senate in session, to prohibit President
George W. Bush from making certain recess appointments.
Senator--excuse me, President Bush did not contest that in the
So, this excessive litigation attack is just without
foundation. This again cuts across both party lines here. This
is a fundamental constitutional question.
Now, it is also interesting to note that President Obama,
at that time Senator Obama, was very active in the Senate
Democratic Caucus with Senate Majority Leader Reid. The
president knew very well or should have known of this
And to emphasize that point, and we have this in our
testimony, advisors to the president when this issue came up as
potential recess appointments in January of 2012 asked for an
opinion of the Department of Justice Office of Legal Counsel,
the OLC. And I am quoting now from the OLC memorandum that was
released after these recess appointments were made.
``The question is a novel one, and the substantial
arguments on each side create some litigation risks for such
appointments.'' Further quoting: ``there is little judicial
precedent addressing the president's authority to make
intrasession recess appointments.''
The president was being advised at that time that there
were difficulties. So, I know that we have questions coming
here. I would like just to summarize the point that my clients
would like this committee and hopefully the administration to
Let us get on with having the Supreme Court decide this
case of Noel Canning. Putting it off does not help anyone. It
hurts unions. It hurts employees. It hurts the business
We are going to have excess litigation costs. We are going
to have delay, et cetera. There already is a split in the
circuits on this issue. This case could be filed for cert by
the government today, and the union that was adversely
Finally, Mr. Chairman, hopefully the White House will have
a constructive dialogue with the Senate so we can identify
neutral, nonpartisan board members and also a nonpartisan
Thank you very much.
[The statement of Mr. King follows:]
Prepared Statement of G. Roger King, of Counsel, Jones Day, on Behalf
of the U.S. Chamber of Commerce and Coalition for a Democratic
Good morning Committee Chairman Roe, Ranking Member Andrews, and
Members of the U.S. House Committee on Education and the Workforce's
Subcommittee on Health, Employment, Labor, and Pensions. It is an honor
and pleasure to appear again before the Committee as a witness. My name
is G. Roger King,\1\ and I am Of Counsel in the Jones Day law firm. I
have been practicing labor and employment law for over 30 years and I
work with employer clients located in various parts of the country with
varying workforce numbers, with a mix of union and non-union
workforces. I have been a member of various committees of The American
Bar Association, The Society for Human Resource Management (``SHRM'')
and The American Society of Healthcare Human Resources Association
(``ASHHRA'') and I also participate in the work of other trade and
professional associations that are active in labor and employment
matters. A copy of my CV is attached hereto as Appendix A.
Mr. Chairman, I request that the entirety of my written testimony,
and the attachments thereto, be entered into the record of the hearing.
Mr. Chairman, I am testifying this morning on behalf of The Chamber
of Commerce of the United States of America (the ``Chamber'') and
Coalition for a Democratic Workplace (``CDW'').\2\ The Chamber is the
world's largest federation of businesses, representing 300,000 direct
members and having an underlying membership of over 3,000,000
businesses and professional organizations of every size and in every
relevant economic sector and geographic region of the country. The
fundamental activity of the Chamber is to develop and implement policy
on major issues affecting businesses, including on labor issues and the
activities of the National Labor Relations Board (``NLRB'' or ``the
Board''). Because the Chamber represents employers in every industry
covered by the National Labor Relations Act (``NLRA'' or ``the Act''),
it is particularly qualified to articulate the business community's
concerns with the NLRB's recent activity.
The Coalition for a Democratic Workplace is a broad-based coalition
that represents employers and associations and their workforces in
traditional labor law issues. The Coalition consists of hundreds of
members, who represent millions of employers. CDW was formed to give
its members a voice on labor issues, specifically, the Employee Free
Choice Act. More recently, CDW has advocated for its members on a
number of labor issues including non- employee access, an employee's
right to have access to organizing information from multiple sources,
unit determination issues, and the validity of rules and regulations
promulgated by the Board.
The Current NLRB Has Failed To Follow Sound Public Policy, Overturned
Important Precedent, And Faces An Uncertain Future
The Composition of The National Labor Relations Board--
Quorum and Recess Appointment Issues
By statute, the National Labor Relations Board consists of five
Members, each nominated by the President for five-year terms subject to
the advice and consent of the Senate or, in the case of an appointment
to fill a vacant seat, the length of time remaining in unexpired term
of the Member who previously held the seat. See 29 U.S.C. Sec. 153(a).
While the Board is at a full complement with five Members, the NLRA
requires that the Board maintain a quorum of at least three Members in
order to conduct business. See id.; New Process Steel, L.P. v. NLRB,
130 S. Ct. 2635 (2010).
The NLRB under the current Administration has never reached a full
complement of five confirmed Members, nor has there been a confirmed
General Counsel of the Board. Indeed, the current Board has
consistently relied on recess-appointed Members to issue decisions,
engage in rulemaking, and undertake other Board actions.\3\ Only one of
President Obama's recess appointees to the Board--all of whom were
appointed while Congress was in Session (i.e., intrasession
appointees)--has been confirmed by the Senate: Chairman Mark Pearce,
who was recess appointed on March 27, 2010 and confirmed on June 22,
2010. President Obama's other recess appointees Craig Becker, appointed
March 27, 2010, and Richard Griffin, Sharon Block, and Terence F.
Flynn, all appointed on January 4, 2012, have never been confirmed.
President Obama also nominated former Member Brian Hayes, who was
confirmed on June 22, 2010.
Beginning on January 20, 2009--the date of President Obama's
inauguration--the Board's composition has consisted of the following
Members (Boards with a valid quorum are in bold):
January 20, 2009 through March 26, 2010: Two confirmed Members (Liebman
& Schaumber); all decisions invalidated by New Process Steel
March 26, 2010 through June 21, 2010: Two confirmed Members (Liebman &
Schaumber) and two intrasession recess appointees (Pearce &
June 22, 2010 through August 27, 2010: Four confirmed Members (Liebman,
Schaumber, Pearce, & Hayes) and one intrasession recess
August 28, 2010 through August 27, 2011: Three confirmed Members
(Liebman, Pearce, & Hayes) and one intrasession recess
August 28, 2011 through January 3, 2012: Two confirmed Members (Pearce
& Hayes) and one intrasession recess appointee (Becker)
January 3, 2012 through January 9, 2012: Two confirmed Members (Pearce
January 9, 2012 through July 24, 2012: Two confirmed Members (Pearce &
Hayes) and three intrasession recess appointees (Griffin,
Block, & Flynn)
July 25, 2012 through December 16, 2012: Two confirmed Members (Pearce
& Hayes) and two intrasession recess appointees (Griffin &
December 17, 2012 to present: One confirmed Member (Pearce) and two
intrasession recess appointees (Griffin & Block)
Restraint Exercised by Previous Boards in Overturning Precedent
As I have previously testified before this Committee, past Boards--
during both Democrat and Republican administrations--have exercised
considerable restraint in overturning precedent when acting with less
than a full complement of five Members. The Board has noted its
institutional ``well-known reluctance to overrule precedent when at
less than full strength (five Members).'' See Teamsters Local 75
(Schreiber Foods), 349 N.L.R.B. 77, 97 (2007) (emphasis added). The
author of that quote--former Chairman Liebman--addressed the Board's
proper role with less than five Members in an open letter to this
Committee dated February 25, 2011. In the letter, she noted that
``[t]he Board's tradition * * * is not to overrule precedent with fewer
than three votes to do so,'' citing to Hacienda Resort Hotel & Casino,
355 N.L.R.B. No. 154, at *2 n.1 (Aug. 27, 2010). Hacienda admittedly
stands for that proposition, but includes the important qualifier that
the Board will reverse precedent on the vote of three Members ``where
there was a unanimous vote to do so.'' Id. (emphasis added).
A certain degree of policy oscillation by the Board is to be
expected given the tradition that three of the five statutory positions
on the Board are filled by the political party that controls the White
House, while the remaining two positions are filled by the other party.
There are undoubtedly examples of Boards under both Republican and
Democrat administrations proceeding to overrule precedent without a
full Board. However, 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. Proceeding in
such a manner raises significant public policy issues regarding how our
nation's labor policy should be established and labor laws should be
In addition to the Board's tradition of refraining from reversing
precedent without either a full Board or three unanimous votes for
reversal, the Board has also previously exhibited restraint when
operating with a quorum of questionable validity. In December 2007, the
Board consisted of confirmed Members Liebman and Schaumber and recess-
appointed Members Kirsanow and Walsh, whose terms would expire at the
end of the year. The Board attempted to delegate decision-making
authority to Members Liebman and Schaumber so that they could issue
two-Member decisions until a third Member could be confirmed. The
minutes of the meeting during which the Board delegated its decision-
making authority to two Members included a discussion of the legality
of the Board operating with less than two Members.\4\
Members Liebman and Schaumber, Democrat and Republican nominees,
respectively, reached an informal agreement that while acting as a two-
Member Board, they would refrain from deciding contentious issues then
pending before the Board. See, e.g., Steven Greenhouse, Labor Panel Is
Stalled By Dispute on Nominee, N.Y. Times, Jan. 14, 2010, at A16.
Member Schaumber noted that, as a result, the Board produced decisions
in which ``two people who ideologically differ have reached a decision
about imperatives under the statute.'' Id. When those two-Member
decisions were invalidated by the Supreme Court's New Process Steel
decision, a properly constituted three-Member panel of the Board was
required to revisit each decision. However, because the decisions had
been unanimously decided by Members with opposing philosophical views,
the Board was able to expeditiously affirm the two-Member decisions in
the vast majority of the Board cases that were subject to
reconsideration after the Supreme Court decision in New Process Steel.
The Board was faced with a similar issue when recess-appointee
Becker's term expired at the end of the First Session of the 112th
Congress (2011). President Obama's decision to recess appoint Members
Block, Griffin, and Flynn gave the Board two confirmed Members (Pearce
& Hayes) and three recess appointees. While Member Flynn's nomination
to the Board had been pending in the Senate since early 2011, President
Obama did not refer the nominations of Members Block and Griffin to the
Senate for consideration until December 15, 2011 and subsequently
recess appointed all three Members less than three weeks later on
January 4, 2012. Indeed, Members Block and Griffin were recess
appointed before the Senate Committee on Health, Education, Labor &
Pensions had the opportunity to vet the nominees, including by
performing routine background checks.
We now know that these intrasession recess appointments were
invalid. The D.C. Circuit's January 25, 2012 decision in Noel Canning
v. NLRB,--F.3d----, 2013 WL 276024, held that recess appointments are
only lawful if the appointment is made during an intersession recess of
the Senate and fills a position that became vacant during the same
intersession recess. See id. at *8-16. Because the appointments of
Members Block, Griffin, and Flynn were intrasession appointments, the
appointments were invalid and the Board lacked the requisite three-
Member quorum to act. Id. at *23.
While the D.C. Circuit concluded that the appointments were invalid
because they were intrasession appointments, the appointments were
instantly dubious in light of the fact that the Administration took the
unprecedented step of making the appointments while the Senate was
convening every three days pursuant to a unanimous consent agreement
reached on December 17, 2011. See 157 Cong. Rec. S8783 (daily ed. Dec.
17, 2011). The Senate conducted important business during these
sessions, including passing a temporary extension of the payroll tax
cut on December 23, 2011. See 157 Cong. Rec. S8789 (daily ed. Dec. 23,
2011). Additionally, the Senate convened on January 3, 2012--the day
immediately before the recess appointments were made--to fulfill its
Constitutional obligation to begin its annual meetings ``at noon on the
3d day of January.'' See U.S. Const. am. XX Sec. 2. The Chamber and
CDW immediately questioned the validity of the appointments. See Obama
defies lawmakers with recess appointments to labor board, The Hill,
(Jan. 4, 2012), available at http://thehill.com/business-a-lobbying/
(last visited Feb. 11, 2013).
Even the Administration recognized the questionable nature of the
recess appointments of Members Griffin, Block, and Flynn. Counsel to
the President asked the Department of Justice's Office of Legal Counsel
(``OLC'') whether the President had the authority to make the
appointments between January 3 and January 23. OLC noted that ``[t]he
question is a novel one, and the substantial arguments on each side
create some litigation risk for such appointments.'' Memorandum Opinion
for the Counsel to the President at 4, available at http://
www.justice.gov/olc/2012/pro-forma-sessions-opinion.pdf (last visited
Feb. 11, 2013).
OLC also recognized that ``there is little judicial precedent
addressing the President's authority to make intrasession recess
appointments.'' Id. at 8. Nonetheless, OLC concluded that the President
had the authority to make the recess appointments. Id. at 1.
Challenges to the recess appointees were also made to the Board as
early as March 2012, when an employer argued that the Board lacked a
quorum because Members Griffin, Block, and Flynn were not validly
appointed. See Ctr. For Social Change, Inc., 358 N.L.R.B. No. 24 (Mar.
29, 2012). The Board ``declined to determine the merits of claims
attacking the validity of Presidential appointments to positions
involved in the administration of the Act.'' Id. at *1.
In light of the clear challenges to the Board's quorum, the Board
under the current Administration should have exhibited restraint in
proceeding with a majority of its Members subject to challenge. The
Board's tradition of not reversing precedent without a full Board or,
at a minimum, three unanimous votes to do so, and the Board's prior
prudence of avoiding controversial issues while acting as a two-Member
Board, all respected the sound public policy of protecting the
enforcement of the nation's labor laws and the promulgation of national
labor policy. The Board under the current Administration should have
undertaken a similar approach.
To the contrary, however, the Board and its Acting General Counsel
continued on their prior activist agenda in case decisions, rulemaking
initiatives (including delegations of authority), enforcement
initiatives, and Regional Director appointments. Relying on recess
appointees, the improperly-constituted Board worked to bring about
significant departures from precedent and expanded the reach of the Act
in an unprecedented manner, especially regarding employer policies and
procedures. In nearly all such cases, these initiatives and decisions
operated to the disadvantage of America's employers--particularly small
and mid-sized businesses.
The Board's Activist Agenda--Recent Decisions
A number of Board decisions issued since January 4, 2012 either
explicitly reversed precedent or amounted to a significant departure
from the Board's interpretation of the National Labor Relations Act,
despite the fact that the Board had neither a full complement of
Members nor three unanimous votes for reversing precedent. For example:
WKYC-TV, Inc., 359 N.L.R.B. No. 30 (Dec. 12, 2012)--The Board
overturned 50 years of its case law to hold that an employer no longer
has the unilateral right to stop withholding union dues from employee
paychecks after expiration of the collective bargaining agreement. It
has been longstanding law that an employer's obligations under dues
deduction clauses were like union security and arbitration clauses
which become ineffective after contract expiration. In WKYC--TV, Inc.,
however, the Board found, over the dissent of Member Hayes, that dues
deduction clauses should be treated like other provisions of the
agreement that relate to mandatory subjects of bargaining and be
subject to a ``status quo'' obligation after contract expiration. As a
result of this new decision, an employer may stop deducting dues after
the expiration of a collective bargaining agreement only after
participating in potentially protracted negotiations which result in
``impasse'' unless the collective bargaining agreement in question
included an explicit waiver by the union of its right to negotiate over
this issue (i.e., the union clearly and unmistakably waived its right
to negotiation on this issue).\5\
Piedmont Gardens, 359 N.L.R.B. No. 46 (Dec. 15, 2012)--The Board
overturned 30 years of case law to hold that an employer may need to
furnish to the union relevant witness statements made during the course
of an investigation unless the employer proves the existence of a
``legitimate and substantial confidentiality interest'' that outweighs
the union's need for the information. In adopting this approach, the
Board overruled Anheuser-Busch, in which it held that witness
statements obtained during an employer's investigation of workplace
misconduct were exempt from the employer's pre-arbitration disclosure
obligations. The Board in Piedmont held, over the dissent of Member
Hayes, that there is no fundamental difference between witness
statements and other types of information typically disclosed such that
a blanket exemption is warranted. Instead, where an employer argues
that it has a confidentiality interest in protecting witness statements
from disclosure, the Board apparently will now engage in a subjective
analysis and consider the sensitivity and confidentiality of the
information at issue based on the specific facts on a case-by- case
basis. Under this approach, an employer may not refuse to furnish the
requested information but must timely raise any confidentiality
concerns and seek an accommodation from the union. This decision, taken
together with other recent Board decisions, will make it more difficult
for an employer to get written statements from witnesses. When the
witnesses realize that their identity will be disclosed and their
statements provided to the union, which will in turn share the
statements with the employee being disciplined, it is unlikely that
witnesses will be as forthcoming.
Further, the Board's new subjective standard will undoubtedly
result in more litigation and corresponding expense to employers in
their attempt to ascertain what their new obligations are in this area
under the NLRA.
Alan Ritchey, Inc., 359 N.L.R.B. No. 40 (Dec. 14, 2012)--The Board
found that after the union has been selected as the employees'
bargaining representative, but before the first contract has been
agreed to, the employer must bargain over discretionary discipline
before it is imposed. Employers negotiating first contracts will now
need to carefully analyze whether a suspension, demotion, or discharge
involves any discretion, and if so, unless there are exigent
circumstances, the employer must notify the union it is considering
imposing discipline and allow the union to request bargaining over the
decision to discipline. The practical operational problems with this
decision are self evident, including the potential for considerable
delay in an employer applying its work rules and ultimately negotiating
an initial collective bargaining agreement.
The Finley Hospital, 359 N.L.R.B. No. 9 (Sept. 28, 2012)--The Board
held that an employer was obligated to continue giving wage increases
despite that the collective bargaining agreement providing the wage
increases had expired. The hospital and union entered into a one-year
contract with a provision stating that ``for the duration of this
Agreement, the Hospital will adjust the pay for Nurses on his/her
anniversary date. Such pay increases for Nurses not on probation,
during the term of this Agreement, will be three (3) percent.''
Chairman Pearce and Member Block, over Member Hayes's dissent, held
that the hospital, pursuant to a new ``dynamic status quo'' doctrine,
was required to continue giving wage increases after the contract
expired until a new agreement had been reached. As a result, the
employer was required to continue providing increases long after it had
completed its agreement to give each employee an annual 3% increase
during the life of the agreement.\6\
Fresenius USA Manufacturing, Inc., 358 N.L.R.B. No. 138 (Sept. 19,
2012)--A Board majority consisting of recess appointees Griffin and
Block held, over the dissent of Member Hayes, that an employer violated
the Act when it terminated an employee who lied during an internal
investigation. Fresenius received complaints that someone was writing
threatening and harassing messages on newsletters circulated during a
decertification campaign. The employer had reason to believe that
employee Grosso wrote the statements and questioned him about them.
While he denied making the statements, he admitted that they could be
viewed as improper.
Grosso subsequently unwittingly admitted his role in writing the
statements. Fresenius discharged Grosso both for writing the statements
and for his false denials. The Board held that the statements could be
protected activity in support of the union. The Board also found that
Grosso's lies could not be a basis for discipline. The Board wrote that
``Fresenius' [sic] questioning of Grosso put him in the position of
having to reveal his protected activity, which Board precedent holds
that an employee may not be required to do where, as here, the inquiry
is unrelated to the employee's job performance or the employer's
ability to operate its business. As a result, although Fresenius had a
legitimate interest in questioning Grosso and lawfully did so, Grosso
had a Sec. 7 right not to respond truthfully. We therefore find that
Grosso's refusal to admit responsibility for the comments cannot be a
lawful basis for imposing discipline.'' (Emphasis added, internal
citation omitted). The Fresenius case puts employers in a quandary.
Title VII of the Civil Rights Act of 1964 holds employers liable for
sexual harassment in the workplace if they know of the harassment and
fail to take steps to eliminate the harassment. Unfortunately, under
Fresenius, employers who attempt to comply with Title VII may run afoul
of the Board's current interpretation of the NLRA.
Banner Estrella Medical Center, 358 N.L.R.B. No. 93 (July 30,
2012)--The Board, consisting of recess appointees Griffin and Block,
held that an employer violated Section 8(a)(1) of the Act by asking for
confidentiality during company investigations.
Banner Estrella had a policy of routinely asking employees who
complained to human resources, and thereby triggered a company
investigation, to refrain from discussing the matter with coworkers
while the investigation was ongoing. The Board majority, over the
dissent of Member Hayes, held that an employer seeking to prohibit
employees from discussing ongoing investigations bears the burden of
showing that it has ``a legitimate business justification that
outweighs employees' Section 7 rights.'' The Board noted that to meet
this burden, an employer may show that (a) a witnesses needs
protection, (b) evidence is in danger of being destroyed, (c) testimony
was in danger of being fabricated, or (d) there was a need to prevent a
cover up. The Board rejected a ``blanket approach'' to confidentiality
as clearly failing to meet the new Banner Estrella test. As a result of
the Board's decision in Banner Estrella, employers' ability to conduct
an efficient, effective investigation may be significantly limited. The
Board's case-by-case approach for determining whether confidentiality
may be required, or even suggested, as was the case in Banner Estrella,
provides employers with no guidance regarding potential liability under
These decisions--issued by a Board on notice of its questionable
validity--not only created greater uncertainty in the law for
employers, employees, and unions, but also incurred significant legal
fees by both private parties and the government to litigate contentious
issues that must now be revisited by a differently constituted Board.
That Board will, at a minimum, be required to again expend the time and
effort to carefully consider the record and analyze the issues that
were unnecessarily decided by a quorumless Board. The Board's decision
to proceed in this manner, contrary to Board tradition, has resulted in
a significant, needless amount of controversy, confusion, and waste.
The Board's post-January 4, 2012 conduct is but a continuation,
albeit an egregious one, of its prior disregard for Board restraint
when acting with less than a full complement of five Members or, at a
minimum, three unanimous votes to reverse precedent. In addition to
these decisions, the Board, including recess-appointee Becker, and its
Acting General Counsel have initiated a results-oriented trend of
focusing on employers' policies and, by tortured reading of the
policies, finding that the policies violate the National Labor
Relations Act. Under the Board's decision in Lutheran Heritage Village-
Livonia, 343 N.L.R.B. 646 (2004), a five- Member Board held that ``an
employer violates Section 8(a)(1) when it maintains a work rule that
reasonably tends to chill employees in the exercise of their Section 7
rights.'' Id. at 646.
Workplace rules or policies are unlawful under Lutheran if they
explicitly restrict Section 7 activity or if ``(1) employees would
reasonably construe the language to prohibit Section 7 activity; (2)
the rule was promulgated in response to union activity; or (3) the rule
has been applied to restrict the exercise of Section 7 rights.'' Id. at
The Lutheran majority was concerned about whether a ``reasonable
employee'' reading an employer's rules would interpret the rules as
prohibiting Section 7 activity. Id. The Board majority noted that
``[w]here * * * the rule does not refer to Section 7 activity, we will
not conclude that a reasonable employee would read the rule to apply to
such activity simply because the rule could be interpreted that way. To
take a different analytical approach would require the Board to find a
violation whenever the rule could conceivably be read to cover Section
7 activity, even though that reading is unreasonable. We decline to
take that approach.'' Id. (emphasis added). The Board further noted
that ``[w]ork rules are necessarily general in nature and are typically
drafted by and for laymen, not experts in the field of labor law. We
will not require employers to anticipate and catalogue in their work
rules every instance in which, for example, the use of abusive or
profane language might conceivably be protected by * * * Section 7.''
Id. at 648.
The current Board and its Acting General Counsel have failed to
follow the Lutheran majority test and have formulated a subjective
climate of uncertain labor law which even experienced practitioners are
having difficulty explaining to their clients. For example, over Member
Hayes's dissent, a Board majority relying on recess appointee votes
found unlawful a policy stating that employees were expected to be
``courteous, polite and friendly'' to customers, vendors, suppliers and
co-workers and should not be ``disrespectful or use profanity or any
other language which injuries the image or reputation'' of the
employer. See Knauz BMW, 358 N.L.R.B. No. 164, at *1 (Sept. 28, 2012).
Among countless other policies, the Board through the votes of its
recess appointees and its Acting General Counsel have also found
Prohibiting ``walking off the job and/or leaving the premises
during working hours without permission,'' Ambassador Servs., Inc., 358
N.L.R.B. No. 130, at *1-2 (Sept. 14, 2012);
Prohibiting ``any type of negative energy or attitudes,'' The
Roomstores of Phoenix, LLC, 357 N.L.R.B. No. 143, at *1 (Dec. 20,
Requiring employees to agree to arbitrate employment-related claims
individually, rather than in court or as part of a class proceeding,
D.R. Horton, Inc., 357 N.L.R.B. No. 184 (Jan. 3, 2012); 24 Hour
Fitness, Case No. 20-CA-35419 (N.L.R.B. Div. of Judges Nov. 6,
Employers, especially small- and medium-sized entities, are having
great difficulty attempting to draft policies that will comply with the
Board's recent decisions. The above recent Board decisions and others
make it very difficult to determine what is the state of the law. This
leads to the unfortunate conclusion that the current Board, through the
votes of its recess appointees, is engaging in a subjective,
overreaching, and results-oriented campaign to find both union and non-
union employers guilty of violations of the National Labor Relations
The Board's Activist Agenda--Rulemaking Initiatives
While the Board should have refrained from addressing such
significant issues until the validity of the recess appointees could be
resolved, its failure to do so is not surprising for those who have
been watching the Board during the current Administration. As I have
previously testified before the U.S. House Committee on Education and
the Workforce, the current Board's rulemaking efforts revealed the
agency's intent to rush its initiatives to completion, regardless of
policy or legal concerns to the contrary.
The Board's Final Rule on Representation Case Procedures was
published on December 22, 2011--just days before recess-appointee
Member Becker's term expired. See 76 Fed. Reg. 80,138 (Dec. 22, 2011).
The Board rushed the entire rulemaking proceeding by failing to comply
with Executive Order 13,563's directive that the Board ``shall seek the
views of those who are likely to be affected * * * before issuing a
notice of proposed rulemaking.'' For example, the Board failed to
solicit input from common sources of review and advice, such as the
American Bar Association's bipartisan Committee on Practice and
Procedures Under The NLRA, or the Board's own Standing Rules Revision
Further, the Board, over the objection of a number of employer
groups, including the Chamber, CDW, HR Policy Association, SHRM, and
others, required all interested parties to file comments regarding the
proposed rule changes within only a 60-day period and refused to extend
the comment period. The 60-day period--the minimum amount of time under
EO 13,563--was woefully inadequate given the extensive and technical
nature of the proposed rule changes.
The Board also rushed the final decision-making process by
attempting to implement eight controversial changes, mostly designed to
unsettle long-standing election hearing proceedings by limiting the
scope of such hearings solely to ``questions of representation,''
restricting pre-election appeals to the Board, prohibiting litigation
of individual eligibility issues to pre-election hearings, and most
importantly, substantially shortening the time between the petition for
an election and the holding of an NLRB election, thereby depriving
employees of the opportunity to learn of the issues associated with
The Board's haste has, at least temporarily, resulted in the
failure of its election rulemaking. On May 14, 2012, a federal district
court judge invalidated the rule on procedural grounds, finding that
the Final Rule was published without being voted on by Member Hayes
and, because only two Members voted, the Board failed to satisfy its
Chamber of Commerce v. NLRB, No. 11-2262, 2012 WL 1664028, at *8-9
(D.D.C. May 14, 2012).\8\ That decision is currently on appeal to the
U.S. Court of Appeals for the D.C. Circuit. Of course, in light of the
D.C. Circuit's decision in Noel Canning, it appears that the rule is
also invalid because Member Becker--an intrasession recess appointee--
who was a Member of the Board at the time, could not have been validly
serving and thus the Board had only two lawfully-seated Members and
could not, pursuant to New Process Steel, lawfully conduct any
Legal, Policy, And Practical Consequences Of The D.C. Circuit's Noel
The Overturning of Approximately 1,000 Board Decisions
Since August 27, 2011
In response to the D.C. Circuit's Noel Canning decision, Chairman
Pearce indicated that the decision ``applies to only one specific case,
Noel Canning'' and that ``similar questions have been raised in more
than a dozen cases pending in other courts of appeals.'' As a result,
he stated that the Board ``will continue to perform [its] statutory
duties and issue decisions.'' See Statement by Chairman Pearce on
recess appointment ruling (Jan. 25, 2013), available at http://
Chairman Pearce's comments on behalf of the Board were, at best, ill-
The Chamber and CDW are well aware of the Board's policy of
administrative non- acquiescence under which it ignores circuit court
decisions that disagree with Board law, thereby allowing the Board to
maintain its position in other circuits until the issue is addressed by
the Supreme Court.\9\ That policy, however, is particularly ill-advised
when, as here, the unfavorable decision comes from the D.C. Circuit,
which has jurisdiction over all petitions for review of Board orders.
See 29 U.S.C. Sec. 160(f). As a result, Noel Canning has a clear
impact on virtually every decision taken by the Board because any party
adversely impacted by a Board order can appeal to the D.C. Circuit,
which will apply Noel Canning to invalidate quorumless actions. The
Board's policy of ignoring unfavorable court decisions is also
inappropriate where, as here, the decision addresses a matter as
fundamental as the Board's ability to function.
Notwithstanding Chairman Pearce's statements and similar statements
from the White House, the Board faces a number of practical
consequences from the Noel Canning decision. For instance, any Board
decision made with less than three valid, confirmed Members stands to
be invalidated in light of Noel Canning. By our initial estimates,
there may be nearly 1,000 invalid decisions since former Chairman
Liebman's term expired on August 27, 2011.
Invalid Delegations of the Board's Section 10(j) Injunction Authority
Noel Canning also has potential reach beyond the Board's case law.
For example, Section 10(j) of the NLRA gives the Board authority to
seek injunctive relief from violations of the Act. When the Board is
operating with a quorum, the General Counsel is authorized to, upon
approval of the Board, institute litigation in federal court seeking
injunctive relief under Section 10(j) of the Act. However, when the
Board has anticipated a loss of membership that results in the loss of
quorum, the Board has often given the General Counsel the ability to
institute Section 10(j) litigation without Board approval. See, e.g.,
66 Fed. Reg. 65,998-99 (Dec. 21, 2001); 67 Fed. Reg. 70,628 (Nov. 25,
2002). Those delegations of authority, however, are temporary and
explicitly state that the ``delegation shall be revoked whenever the
Board has at least three Members.'' 66 Fed. Reg. 65,998-99; 67 Fed.
Reg. 70,628 (``shall cease to be effective whenever the Board has at
least three Members.'').
The current Board attempted to delegate its Section 10(j) authority
to Acting General Counsel Solomon on November 9, 2011. See 76 Fed. Reg.
69,798 (Nov. 9, 2011). However, because the Board lacked a valid quorum
at the time, that order appears to be invalid. As a result, the Acting
General Counsel must find some other authority for instituting Section
10(j) proceedings without the approval of a valid Board, as he has done
four times in January 2013.\10\ However, the next most recent
delegation of authority was made when the Board anticipated losing
quorum in December 2007. That delegation specifically noted that it
``shall be revoked when the Board returns to at least three Members
following the adjournment of the 1st Session of the 110th
Congress.''\11\ As a result, the delegation would have been revoked on
June 22, 2010 when the Board had four confirmed Members (Liebman,
Schaumber, Pearce, and Hayes).
Invalid Appointments of Regional Directors By Quorumless Boards
Noel Canning may also impact the authority of the Board's Regional
Directors, who are responsible for overseeing the Board's 28 Regional
Offices. Since the early 1960s, the Board has delegated its appointment
power to the General Counsel's office, allowing the General Counsel to
appoint, transfer, demote, or discharge employees in the Board's field
However, each delegation notes that ``[t]he appointment, transfer,
demotion, or discharge of any Regional Director or of any Officer-in-
Charge of a Subregional office shall be made by the General Counsel
only upon the approval of the Board.'' See, e.g., 77 Fed. Reg. 45,696
(Aug. 1, 2012) (emphasis added).\12\ A list of potentially affected
Regional Directors is attached as Appendix D.
The Potential Impact on Other Periods of NLRB History
Noel Canning's impact may also affect other periods of the Board's
history. For example, a chart maintained by the NLRB reflecting the
Board's composition since 1935 shows that the Board frequently relied
on recess appointees to maintain a three-Member quorum. Noel Canning
may render invalid some of those recess appointments and, if the
invalid appointment deprives the Board of a quorum, the corresponding
actions taken by the quorumless Board. A chart attached as Appendix E
shows all changes in Board composition since December 30, 2000 and,
where recess appointees were seated on the Board, addresses whether the
appointment was intersession or intrasession and if the appointment was
intersession, whether the vacancy ``happened'' during the same
recess.\13\ While Noel Canning certainly brings into question the
validity of Board actions since August 27, 2011, other periods of Board
activity may also be affected.
The Impact of the Noel Canning Decision on Other Federal Agencies
It is important to note that impact of Noel Canning is not limited
to the National Labor Relations Board. Rather, it calls into question
every recess appointment made during an intrasession recess or that was
used to fill a vacancy that did not arise during an intersession
The Board undoubtedly would like to proceed with its important work
of enforcing the Act. However, its actions since the Noel Canning
decision, including, as of February 10, 2013, issuing 26 published and
unpublished decisions, authorizing two Section 10(j) lawsuits, and
appointing one Regional Director, only exacerbates the uncertainty
surrounding the Board.
The Administration Should Seek Certiorari To Resolve These Important
At present, it remains unclear whether the Administration will
either appeal the Noel Canning decision to the en banc D.C. Circuit or
seek certiorari to the U.S. Supreme Court. In a White House Press
Briefing on January 25, 2013, White House Press Secretary Jay Carney
made clear that the White House ``disagree[s] strongly'' with the
decision. See Press Briefing by Press Secretary Jay Carney (Jan. 25,
2013), available at http://www.whitehouse.gov/the-press- office/2013/
01/25/press-briefing-press-secretary-jay-carney-1252013. However, the
Administration, like the Board, maintains the untenable and mistaken
position that the decision only affects ``one case, one company, one
Given the Board's position that it will continue to operate on a
``business as usual'' basis, the validity of recess appointees Block
and Griffin must be resolved. In the interim, the Board's interested
stakeholders are left to wonder about the validity of virtually all
Chamber President and CEO Thomas J. Donohue has outlined a number
of important questions that parties before the Board face while the
administration continues to ignore Noel Canning. A copy of President
Donohue's opinion piece published on February 5, 2013 in Politico is
attached as Appendix F.
As President Donohue noted, the Administration should seek
certiorari now, rather than waiting for a more favorable decision from
another appeals court. The issues in the case are clear and the Court
should address them now, at the earliest available opportunity. A
failure to do so only increases the uncertainty faced by all parties to
Board proceedings--employers, employees, and unions alike. Such
stakeholders during this great period of uncertainty must continue to
comply with the Board's actions, thereby resulting in an unnecessary
waste of time and litigation costs. Finally, there will continue to be
a substantial ``legal taint'' on all of the Board's actions and its
legitimacy until this issue is resolved.
The Uncertain Future Of The National Labor Relations Board
Despite efforts by the NLRB and the current Administration to
suggest that Noel Canning is only one case about one company, the
decision has placed a dark cloud not only over the NLRB, but over every
agency that relies on recess appointees to carry out the important work
of the federal government. As noted above, countless Board actions are
now of dubious validity, including Board decisions, rules, delegations
of authority, official appointments, and many other Board actions.
While the Board must be mindful of the impact of Noel Canning on
its past, the Board and Congress must also focus on the agency's highly
uncertain future. Chief Judge Sentelle's opinion in Noel Canning noted
the fragile nature of the Board's composition, with the Board often
facing a virtual shutdown by the loss of quorum when Congress and the
Executive are unable to reach agreement over the qualification of
nominees. Indeed, Noel Canning leaves Chairman Pearce as the only valid
current Member of the Board. His term expires in just over six months
on August 27, 2013.
In short, the Board finds itself in the same position it has
repeatedly found itself during the last decade: its ability to perform
its statutory duty of enforcing the nation's labor laws and promoting
industrial stability is in doubt. Many interested stakeholders,
including the Executive and the Board, could have taken actions to
minimize, or perhaps prevent, this stain on the Board's reputation.
Going forward, I encourage this Committee, Congress, the
Administration, and the Board to ensure that the Board's future is not
called into further doubt and that this unnecessary uncertainty is
brought to an end.
In conclusion, Mr. Chairman, I would be happy to take any questions
the Committee might have regarding my testimony.
\1\ Mr. King, who is a member of Jones Day's Labor & Employment
Practice Group, can be reached at [email protected]. He would like to
acknowledge R. Scott Medsker, an Associate in the Jones Day Labor &
Employment Practice Group, for his assistance in the preparation of
\2\ Jones Day represents these organizations in the Noel Canning
litigation. See Noel Canning v. NLRB,--F.3d----, Nos. 12-1115, 12-1153,
2013 WL 276024 (D.C. Cir. Jan. 25, 2013). Mr. King is one of the
counsel of record in this litigation along with Noel Francisco and
James Burnham, also of the Jones Day firm, and Gary Lofland of Lofland
and Associates in Yakima, Washington. A copy of the joint brief for
Noel Canning, the Chamber, and CDW is attached hereto as Appendix B. A
copy of the court's decision in Noel Canning is attached as Appendix C.
\3\ The Board has also had to rely on an Acting General Counsel to
carry out the chief enforcement actions of the Board, many of which
have engendered the Board in controversy. Lafe Solomon has been serving
in an ``Acting'' capacity since his appointment on June 21, 2010.
\4\ The minutes of the December 20, 2007 meeting are attached to
the brief of Petitioner New Process Steel, L.P., filed in New Process
Steel, L.P. v. NLRB, Case No. 08-1457, and may be found online at
\5\ The Board virtually never finds that a union has ``clearly and
unmistakably'' waived its right to bargain on an issue.
\6\ Jones Day represents The Finley Hospital in its petition for
review of the Board's Order. That appeal is pending in the U.S. Court
of Appeals for the D.C. Circuit.
\7\ Jones Day represented the Chamber as amicus curiae in 24 Hour
\8\ Jones Day represented the American Hospital Association, the
American Society for Healthcare Human Resources Administration, the
American Organization of Nurse Executives, HR Policy Association, and
the Society for Human Resource Management as amici curiae in the
\9\ See, e.g., John L. Radder, Agency Nonacquiescence:
Implementation, Justification, And Acceptability, 42 Wash. & Lee L.
Rev. 1233, 1246-50 (1985).
\10\ See Blossom View Nursing Home & Rehab. Ctr., Case No. 3-CA-
89876 (authorized Jan. 29, 2013); Santa Fe Tortilla Co., 28-CA-87842
(authorized Jan. 29, 2013); Nova Servs., Inc., 8-CA-87640 (authorized
Jan. 24, 2013); Colossal Contractors, Inc., 5-CA-88965 (authorized Jan.
\11\ This delegation was also recorded in the minutes of the
Board's December 20, 2007 meeting. See Br. of Petitioner New Process
Steel, L.P., Case No. 08-1457, available at http://www.oyez.org/sites/
default/files/cases/briefs/pdf/brief 08-14571.pdf. This delegation may
also be invalid because only two confirmed Members participated along
with two recess appointees.
\12\ This most recent codification of the regulation may be invalid
because it was issued by a quorumless Board on August 1, 2012. Prior
Boards have, however, issued the same regulation many times, including
on October 9, 2002 (67 Fed. Reg. 62,992). The requirement of Board
approval was originally promulgated in 1955 (20 Fed. Reg. 2,175 (Apr.
6, 1955)), then revoked in 1959 (24 Fed. Reg. 6,666 (Aug. 15, 1959)),
and finally restored again in May 1961 (26 Fed Reg. 3,911 (May 4,
1961)). It has remained in place ever since.
\13\ The Board's membership data is maintained on the Board's
website at http://www.nlrb.gov/members-nlrb-1935. Each row denotes a
change in Board composition, including adding Members, losing Members,
and the confirmation of previously recess-appointed Members. The
``from'' and ``to'' columns indicate the dates those Members served on
the Board beginning from taking their oath of office. Thus, the date
does not necessarily reflect the date that they were recess appointed.
For example, while the chart shows that Members Block, Griffin, and
Flynn began serving on January 9, 2012, they were recess appointed on
January 4, 2012. Each recess appointment has been classified as
intersession or intrasession relying on the February 4, 2013
Congressional Research Service Report entitled The Noel Canning
Decision and Recess Appointments Made from 1981-2013, available at
Recess%20Appointments%201981-2013.pdf (last visited Feb. 11, 2013).
[Appendices to Mr. King's statement may be accessed at the
following Internet address:]
Chairman Roe. I thank the panel. And I am going to yield to
our chairman who has another obligation.
Mr. Kline. Thank you, Mr. Chairman. I very much appreciate
the courtesy. And I apologize to my colleagues for jumping to
the head of the line.
Ms. Reynolds, I just want to make sure I have got this
right for the record. Is it your testimony that Chairman Roe
and I and others who have expressed concerns about the NLRB
acting right now when their constitutionality is challenged are
``serving the narrow interests of the 1 percent.'' Is that--is
that your testimony?
Ms. Reynolds. Well, Mr. Kline----
Mr. Kline. I would prefer a yes or no.
Ms. Reynolds. Yes, Mr. Kline----
Mr. Kline. Thank you.
Ms. Reynolds [continuing]. That is serving those
Mr. Kline. Thank you. Reclaiming my time. Extraordinary.
Mr. King, a couple of quick questions. Could you tell us
why it was that President Bush--was unable to use recess
appointments to fill vacancies at the NLRB between 2008 and
Mr. King. Yes, Chairman Kline. Senate was in session.
Senate was gaveling in and gaveling out every 3 days at a
minimum and conducted business. The Senate was available for
business. So, constitutionally the president was prohibited
from making recess appointments during those time periods.
Mr. Kline. So, that would be similar to the circumstance we
have just been in where President Obama decided to make these
recess appointments. Is that correct?
Mr. King. Yes, sir. You are exactly correct.
Mr. Kline. So, the claim that we have heard a number of
times, that these recess appointments have been made by
multiple presidents year after year, do not account for the
fact that the Senate was in pro forma session, is that correct,
the intra-recess appointments?
Mr. King. That is correct. Those are all red herrings.
Those are diversions from the constitutional principles that we
should be talking about here. Total red herrings what President
Clinton, President Carter, first President Bush, others have
done. That does not have any bearing at all on the facts of
this case. I wish people would pick that up.
Mr. Kline. Thank you. I think we just did.
I want to get this right. So, I have got a note here to
make sure that I have got the numbers right. I have got,
according to my notes here over 27 months, again, Mr. King,
starting in 2008 the NLRB issued approximately 600 rulings in
unfair labor practice and representation cases with two
On June 18, 2010 in a New Process Steel, L.P. v. NLRB the
U.S. Supreme Court held that the NLRB must maintain a
membership of at least three members to constitute a quorum,
the heart of this whole discussion. What happened to the
rulings those two members issued?
Mr. King. Chairman Kline, they all had to come back and be
reconsidered. But an important point that you raised is that
then Chairman Liebman of the NLRB, a Democrat, and the other
member, the second member, Member Schaumber, Peter Schaumber,
they agreed to not decide controversial cases. They agreed not
to overturn precedent.
They showed great restraint. The cases they did issue they
issued unanimously. So, when those cases came back they were
fairly easily processed, albeit there was that delay.
Contrast that, Mr. Chairman, with what we have today. We
have an NLRB going full speed ahead, according to the chairman,
with two recess appointees that are now highly questionable
from a constitutional perspective. We have expedited election
rulemaking going forward. We have no restraint at all.
So what this board has done is totally opposite of what a
Democrat and Republican board member scenario did prior to the
New Process Steel. It is very unfortunate, bad public policy.
Mr. Kline. So then these dealings are actually much more
controversial is your point I believe, than those that were
made--got overturned in the past. And so whether you are the 1
percent or 5 percent or 10 percent, if you are in business out
there and you are now trying to decide about the
constitutionality, the legality, the effectiveness of the
rulings of the NLRB, you have got to have some concern. If they
were overturned in the past, why wouldn't they be here?
So, those of us who have called for the NLRB to stop
activity until the membership can be constitutionally
reestablished are concerned about workers, unions, employers,
the economy because there is great uncertainty out there. And
it is very difficult for employers and employees and unions and
all those to make a decision with any confidence that that
decision based on an NLRB ruling will stand. And that is our
And with all apologies to our witness, it is not just
because we are concerned about the special interests of the 1
percent. Thank you. I yield back.
Chairman Roe. Thank the gentleman for yielding.
Mr. Andrews. I thank the panelists for their preparation.
We have heard some very diverging views about what various
policies should be of the National Labor Relations Board. That
leaves me the conclusion that we would all be well served by
having a functioning board that has a full quorum that can
decide these issues and let the process run its course.
This morning President Obama nominated Sharon Block and
Richard F. Griffin to the National Labor Relations Board. He
filed those appointments this morning.
Now, I know that some of you will oppose those nominations.
I suppose others of you will support the nominations. Who among
the panelists think that the Senate should be encouraged to
take an up or down vote on each of those two nominations?
What do you think, Mr. Lorber?
Mr. Lorber. It is certainly up to the Senate and its
Mr. Andrews. But what is your opinion? Do you think there
should be an up/down vote or not?
Mr. Lorber. Senate should consider the qualifications of
Mr. Andrews. Should they put them up for a vote or not?
Mr. Lorber. It would be up to the committee and then the
Mr. Andrews. You do not have an opinion on that?
Mr. Lorber. No.
Mr. Andrews. Mr. LaJeunesse, did I pronounce your name
Mr. LaJeunesse. Yes.
Mr. Andrews. I apologize; make sure I got it right. Should
the Senate put these two nominees for an up/down vote?
Mr. LaJeunesse. I think these two nominees should be
defeated. They have proven that they are willing to go well
beyond the boundaries of the act.
Mr. Andrews. But you----
Mr. LaJeunesse. Failed to follow Supreme Court precedent,
Mr. Andrews. If I may----
Mr. LaJeunesse [continuing]. I understand----
Mr. Andrews. If I may--if I may, do you think they should
be put to an up/down vote?
Mr. LaJeunesse. I think they should be defeated in whatever
Mr. Andrews. Whatever way possible. That seems rather
extraordinary of the democratic process.
If you were a member of the Senate, which you may be some
Mr. LaJeunesse. I doubt it.
Mr. Andrews. I do not wish that on anyone, sir. I assume
that you would vote no. But you think that they should not even
come up for a vote necessarily?
Mr. LaJeunesse. I think the Senate has procedures that are
lawfully followed in defeating nominations and defeating
legislation, which involve the filibuster. I think that is
Mr. Andrews. Do you think there is any limits on the
filibuster? You think that the Senate should be able----
Mr. LaJeunesse. Well, I am not an expert on it, sir, so I
am not going to go into----
Mr. Andrews. So, you would not be concerned that these
nominations were not put up for a vote?
Mr. LaJeunesse. That is correct.
Mr. Andrews. Ms. Reynolds, what do you think?
Ms. Reynolds. I absolutely believe that Member Block and
Member Griffin should be put for an up or down vote. And I
think it is telling that the responses we are hearing from my
co-panelists show that all these laments that we have been
hearing about the lack of confirmed nominees on the board are
really crocodile tears coming from the same quarters that
prevented those nominations from being voted on in the first
Mr. Andrews. Mr. King, what do you think? Do you think that
these nominations should be put to an up/down vote in the
Mr. King. We have four vacancies on the board while the
fifth vacancy perhaps in August when Chairman Pearce's term
expires. We have an acting general counsel who has never been
I think all of those positions should have nominations sent
to the Senate, have their qualifications fully vetted with the
Senate committee and let the committee then determine whether
those nominations go forward with--with, and this is so
important, with cooperation from both Senate Majority Leader
Reid and Senate Minority Leader McConnell. This is a bipartisan
Mr. Andrews. This question is a little--this question is a
little more direct than your answer was. Does this mean that if
the committee of jurisdiction in the Senate reports those
nominations, the floor of this full Senate should act, in your
Mr. King. Not necessarily.
Mr. Andrews. Not necessarily. I think this is very
illustrative of the--how we got to the point where the case got
decided. The power to advise and consent I do not believe was
ever intended to be the power to paralyze and obstruct.
If a nominee is put forward and rejected by the full body
of the Senate then it is incumbent upon the president to put
forth a new nominee to negotiate and try to get the votes to
get someone confirmed. I think to summarily refuse to put
nominees up for a vote is designed to paralyze an agency. And I
think that is frankly acting in bad faith.
Mr. King, I--there certainly must be some limits on the
power of advise and consent. Do not you think?
Mr. King. Certainly.
Mr. Andrews. What if the Senate said that we are just never
going to consider any nominees of President X ever because we
think he or she is a bad person? Is that something they can do
under the Constitution?
Mr. King. That is not sound public policy, and Mr. Andrews,
Mr. Andrews. That is not what I asked you. Is it something
they can do under the Constitution? Are there limits to the
power of advise and consent?
Mr. King. I am not sure there is a limit on the advice and
consent of the Senate. I would submit there is public policy
that should come into consideration.
Mr. Andrews. So you think then that the Senate could say to
the president--they may say it--some senators may say it now--
'President Obama, we are not going to consider any nominee you
put forth for anything because we do not like the fact you got
reelected.' Can they do that out of the Constitution?
Mr. King. I think they have the right to do it. Whether
they should do it is another question. And that is not what
they are doing. The Senate just confirmed one of the
president's nominees. They are taking up another nominee. But
here is the problem, Mr. Andrews. We get these nominations
shoved down the throat of the minority. And it cuts both ways.
I mean it could be the other way.
Mr. Andrews. With all due respect, it is rather ironic that
you are talking about things being shoved down the throat of
the minority on a panel has three majority witnesses and one
minority witness here. I find that to be an ironic
You are--the issue here really is the scope of the
Constitution, which you argue very eloquently. But I find it
odd that you are unwilling to expound on that scope when it--
when people do something you agree with to block something.
Chairman Roe. I thank the gentleman for yielding.
I bet Judge Bork would have agreed with an up and down
vote. What do you think?
Mr. Andrews. I think Judge Bork got one and was rejected by
Chairman Roe. I do not think so.
Mr. Andrews. I think he got the up/down vote and the Senate
Chairman Roe. There are many of them.
Let me go over a couple things here. One, the function
under the NLRA, the NLRB is supposed to, number one determine
whether employers--employees wish to be represented by a union
or, two, prevent and remedy employer and union unlawful acts
called unfair labor practices.
I have played a lot of ball in my lifetime. And when the
ball bounced off the other guy I expected to get it every now
and then. I did not expect the striped shirts to always be for
the other teams.
I look at the NLRB as a fair arbiter that you come in and
the employer and the employee gets a fair hearing in front of
that board. And also I want to go back to I think Mr. King--and
I want you to expound on this. I think this is a huge
constitutional issue. And the reason that I believe that is, is
that why wouldn't a president, a Republican or a Democrat, just
simply bypass the Senate?
We have three branches of government for a reason. And that
reason is so that no one branch has too much power. And as ugly
as it looks here and as clumsy as it is, it has worked for 220
years in this country.
And so why wouldn't--I want to just--let us just say a
president--this process was not working for secretary of state
or the Department of Defense right now that you are hearing.
Why could not the president just make a recess appointment when
we are in intrasession and put whomever he or she ever would
want in that position?
Mr. King. That is the point, Mr. Chairman. In fact, the
D.C. Circuit Court of Appeals noted that. If you accepted the
government's position, the NLRB's position in the Noel Canning
case, the president could recess someone over the lunch period
of the Senate, or over a holiday, or over a weekend. And when
the government's attorney was pressed in oral argument to give
the court a bright line or a standard, the government could not
Alexander Hamilton in the Federalist Papers noted exactly
the point you are making, that the recess appointment
authority, Mr. Chairman, is an auxiliary or an exception to the
general appointment, advice and consent. Per what Mr. Andrews
said, the roles could be reversed.
And we could have just the opposite Republican president
obviously trying to get nominations through. This Constitution
has worked. This is an important check and balance. And has it
been used excessively from time-to-time? That is for public
policy to determine. But it is the Constitution and it served
Chairman Roe. And why wouldn't a President Clinton or
President Bush make those appointments? The reason they did not
I think was that their attorney general recommended that they
not do it because it was pushing the limits of the
Constitution. So, they chose not to. Am I correct on that?
Mr. King. Absolutely. President Reagan cooperated with
Senate Majority Leader Byrd. President Bush, albeit being
frustrated by Senator Reid, did not challenge the 3-day
appointment process at all; did not do it; worked together on a
bipartisan basis the best that they could. That has not
One other point, if you would pardon me, Mr. Chairman.
These nominees, Sharon Block and Richard Griffin, they were
nominated, those individuals were nominated in mid-December of
2011. And about 20 days or so there after then they are
recessed. The Senate did not even have their paperwork to vet
them. That is incredible.
Chairman Roe. Well, I think we have a little thing now we
are dealing with in 2 weeks called sequestration. Republicans
hate it. Democrats hate it. Maybe it is not a bad idea, both
sides despise it. And I think what you are asking, what the
Constitution set up was, you said okay, you do not get exactly
who you want. It is advice and consent of the Senate. And that
is--I think it is an extremely important constitutional issue.
One of the things I want to bring up, Mr. Lorber, for you,
is--and I have dealt with a lot in my medical practice is
privacy. When you are dealing with the issue you brought up,
whether it is retaliation, whatever, how do you carry out? You
cannot carry out an investigation in public. So how with EEOC,
you mentioned the Americans with Disabilities Act and on; how
do you do that?
Mr. Lorber. Well, it is just simply it is not feasible. The
EEOC has, as I said in my testimony, regulations which talk
particularly about harassment investigations where they say
that these investigations should be confidential. You look to
the ADA, which gets even more, raises more confidentiality
issues. You look to other laws, Genetic Information Act----
Chairman RoeRoe. I want to interrupt you just a second
because my time is about expired. I look it in terms of--I have
someone in my office who is saying terrible things about what
is going on in our office. And if I had it right here or any
member did they would get rid of them. They would fire that
If you had--I know in my medical practice if my person
sitting out front were in everybody's face who showed up we
would have to make a change. This right here says that that
person, at least some of the rulings I read said you can say
about whatever you wanted to and still maintain your
Mr. Lorber. That is exactly right. I think if you look to
the Fresenius decision, which is even worse in several respects
than Banner, Fresenius there was outright harassment. There was
outright threats, sexually demeaning contact, and the NLRB said
this person could not be fired. If that happened at your office
and you did not fire that person you would be sued. And frankly
you would lose.
Chairman Roe. Well, take my time away. My time is expired.
Mr. Holt. Thank you, Mr. Chairman. Just a comment on Mr.
Andrew's line of questioning about regular order being good
policy: the Senate voted to reject Mr. Bork with all 100
Ms. Reynolds, we have heard from other witnesses that the
board--well, that this was just unprecedented. Could you
elaborate on that? In what sense do you think this was
unprecedented? The president did nominate the canonical, the
traditional three Democrats and two Republicans and so forth.
Ms. Reynolds. Mr. Holt, I do not believe that it was
unprecedented at all. To take up on Mr. King's comment about
how this could happen during a lunch break or a weekend. That
was not what occurred here.
I do not know how it looks inside the beltway, but looking
from the rest of the country, if the Senate announces in the
middle of December that it is not going to conduct any
substantive business for over a month and the senators go home
to their districts and one person comes into the chamber and
gavels in and gavels out in a matter of a few seconds every 3
days, it does not seem to me that the Senate is in session and
available for advise and consent.
And furthermore, around the same time that those
nominations were put up in December, in fact shortly before the
nominations, there had been a press release by Senator Graham
stating that he, to quote--``Graham reaffirmed he will continue
to place an indefinite Senate hold on nominations to the
NLRB.'' Those are the words of the senator's press release. So,
the hold of one senator was preventing the Senate from
fulfilling its constitutional function of advise and consent.
To say that this is a pre----
Mr. Holt. Let me move on with a couple of points, and I
will finish with the comment. What seemed unprecedented to me
was the decision.
Mr. King, in Noel Canning did the NLRB find the employer
violated the act in a 3-0 decision?
Mr. King. Yes, it did.
Mr. Holt. And did not the court of appeals agree in this
matter that the NLRB had a reason to basis for the decision?
Mr. King. Yes. That was the holding of the court, Mr. Holt.
Mr. Holt. Do you believe the court of appeals erred in
Mr. King. I do not believe the court was correct in that
part of the decision. I think there was substantial evidence
that there was never a meeting of the minds between the
employer and the union as to a renewal clock to a bargaining
Mr. Holt. So you acknowledge the Court of Appeals can err
in your opinion.
Mr. King. Mr. Holt, as an attorney, yes, courts err from
time to time, certainly.
Mr. Holt. Mr. King, you said `recent verbal outcries
regarding the board decisions are highly partisan and have the
appearance of being part of a coordinated effort to chill and
discourage board members from addressing many of the cases
before them.' No, you did not say that this morning. You
actually said that, I recall, in 2006 during the George Bush
administration with regard to the so-called September Massacre.
Do you recall saying that?
Mr. King. I would have to see the context, Mr. Holt, of
those comments. I will concede, Mr. Holt, and I think anyone
that practices in this area, that looks at the National Labor
Relations Act and the board objectively there certainly is
going to be policy oscillation.
I would agree with Ms. Reynolds. The president has a right
to appoint three of the five, and hopefully have nominees that
are acceptable to the Senate. And we have two from the other
But our point is here from the Chamber and the CDW. These
decisions, Mr. Holt, that we are getting are so far off base.
Eighty plus years of precedent were just reversed the other
Mr. Holt. So if you look at the decision here, which was
actually quite, quite broad, which would invalidate lots of--
lots of appointments I think. Have you and--or your clients
prepared a list of decisions that the NLRB made during either
of the Bush administrations that you think should be declared
invalid at this point, in light of Noel Canning?
Mr. King. Mr. Holt, we have not gone back that far. We have
gone back through March of 2010.
Mr. Holt. I invite you to go back to those administrations
as well and give us a list of the ones that you think should be
Ms. Reynolds, just in the few seconds remaining, I would
like to get back to Mr. Andrews' first point. What this should
be about is why we need an NLRB. What does an inoperable board
mean for your clients? And I suppose you have maybe 15 seconds.
I beg your pardon.
Ms. Reynolds. It means there is no board to certify
election results. It means there is no board to order employers
to comply with the results of an employees' vote. Or it--at
least that is the position that employers will be taking when
they put their cases on hold in the D.C. Circuit and delay
Mr. Holt. Thank you, Mr. Chairman.
Chairman Roe. Thank you for yielding. Dr. Bucshon?
Mr. Bucshon. Thank you, Mr. Chairman. I would like, first
of all with Ms. Reynolds, thank you for your opinion about when
the Senate is in session. I think that we will have to see what
Senator Reid and Senator McConnell think about that.
But this argument is being reframed by your testimony. And
this administration has a problem of making end around Congress
when they do not agree with what Congress does, and that
approach is definitely meant to paralyze the legislative
process, which is what is happening.
So, right now I find it very ironic that the administration
and their allies on the committee, as well as your testimony,
challenging Republicans about these NLRB appointments based on
policy disagreements when really the argument is not about
that. If these appointments were consistent with historical
constitutional precedent then we would not be having this
We not only have to look at Ms. Reynolds' testimony and the
administration's recent attack on the First Amendment right to
religious freedom to see what the tactic is, and we are on to
you. Reframing the discussion will not take this away from the
facts that this is a constitutional issue. And we will continue
to stand up for the Constitution.
And with that, Mr. Chairman, I want to give the rest of my
time to Mr. Gowdy.
Mr. Gowdy. I thank the gentleman.
Ms. Reynolds, who is Miguel Estrada? Have you ever heard of
Ms. Reynolds. I believe he is a circuit court judge if my
recollection is correct.
Mr. Gowdy. I actually do not think so.
Ms. Reynolds. I apologize, I may be wrong.
Mr. Gowdy. Well, I think you are. This is why his name
entered my mind. When my friend, and he is my friend, Mr.
Andrews, was asking you about regular order Miguel Estrada's
name went through my mind.
He was someone who was denied a vote for the D.C. Court of
Appeals, if I am not mistaken, even though he had plenty of
votes to pass in the full Senate. He could not even get a vote.
And I was stunned that you were not able to mention that while
you all were discussing Mr. Bork. If you would, if you have an
opportunity to look up the case of Miguel Estrada, I would be
grateful to you.
Do you agree with me that the Constitution means the same
thing whether there is a Republican in the White House or
whether there is a Democrat in the White House?
Ms. Reynolds. I absolutely do.
Mr. Gowdy. Did you object when Harry Reid was having these
pro forma sessions when President Bush was in the White House?
Ms. Reynolds. Nobody asked my opinion at that time.
Mr. Gowdy. Did you write any law review articles on it?
Ms. Reynolds. I am sorry. No, I did not write any law
Mr. Gowdy. Did you write any columns in any trade magazines
Ms. Reynolds. No.
Mr. Gowdy. So, you only give your opinion when it is asked?
You do not ever just decide hey, this is wrong, I am going to
write a law review article or an op-ed piece and criticize the
fact the Senate is engaging in this travesty to thwart
Ms. Reynolds. I am usually too busy practicing law to write
Mr. Gowdy. Well, we appreciate you taking time out of your
busy practice of law to come today. What is your definition of
Ms. Reynolds. I would prefer not to opine on that. I am a
labor lawyer, not a constitutional scholar.
Mr. Gowdy. Well, ma'am, you cannot have it both ways. You
cannot come and testify on a hearing about recess appointments
and then decline to answer the seminal question which is what
is a recess? If they were to take a nap, which happens from
time to time in the U.S. Senate, is that a recess?
Ms. Reynolds. Well, my understanding was that I was asked
not to testify about recess appointments, but to testify about
the effect of the Noel Canning decision.
Mr. Gowdy. Who in the world asked you not to testify about
Ms. Reynolds. No. That I was not asked to testify about
that, but that the topic of the hearing is the future of the
NLRB, what Noel Canning v. NLRB means for workers, employees,
Mr. Gowdy. And that very case dealt with recess
appointments. So you can understand why I would ask you what is
your definition of a recess?
Ms. Reynolds. I do not have one to offer at this time.
Mr. Gowdy. But you agree it should be the same thing
whether there a Republican in the White House or a Democrat in
the White House.
Ms. Reynolds. Certainly.
Mr. Gowdy. And would you also agree that when the Senate
passes something like the payroll tax extension, did anyone
challenge that as being outside the normal course of Senate
business, that they were not legally constituted to pass that
payroll tax extension?
Ms. Reynolds. I am not aware of any challenges to that.
Mr. Gowdy. So, how can you be in session for purposes of
passing a bill, but not in session for purposes of making a
Ms. Reynolds. I will leave that to the constitutional
scholars to argue.
Mr. Gowdy. Well, what is your opinion?
Ms. Reynolds. In my opinion the appointments were proper.
Mr. Gowdy. Wow. I am almost out of time. I hope that I will
have another chance to go with you through the chronologies of
when these appointments were made. Let me just ask you this. I
will go ahead and give you a couple of the questions up front
so you can think about them.
Do you know who controls the calendar in the Senate?
Ms. Reynolds. I am not an expert on Senate procedure.
Mr. Gowdy. Would you be surprised if I told you the
Ms. Reynolds. I would not be surprised to hear that. But I
am aware that the House prevented the Senate from adjourning
more than 3 days at a time during the time that this was
Mr. Gowdy. That actually was not my question. But we will
get back to my question when it is mine next.
Chairman Roe. I thank the gentleman for yielding.
Mr. Scott. Thank you.
Mr. King, you have criticized these appointments because in
your reasoning they were not made ``during a recess'' and the
gentleman from South Carolina has articulated why he did not
think it is a recess. What about the other parts of the
decision that whenever the recess, only certain recesses count,
those at the end of the session? And that the vacancy has to
occur during the recess? What do you think of those parts of
Mr. King. Congressman Scott, those are excellent questions.
The D.C. Circuit Court of Appeals, as you know, found that
the vacancy has to happen during the recess. And we agree with
that. The Chamber and the CDW agree with that. A literal
interpretation, which I submit really is where we ought to go
on this constitutional question certainly supports that. That
is the way the recess appointment clause reads. So, having the
vacancy happen during the recess was an appropriate finding.
Mr. Scott. And you went to declare that this was in fact
not a recess. You had plenty of precedents to support that.
Do you have any precedents in what previous presidents had
done during intrasession recesses where a vote was taken to go
into recess by both the House and the Senate by resolution,
violating the rule--violating by resolution the rule that
you've got to be in session once every 3 days. If you do not do
that you are in recess, and that is by resolution, if you pass
one of those resolutions in the middle of a session and you are
in recess, are you saying you cannot make an appointment during
Mr. King. Well, it depends, Congressman Scott, on our
definitions here. Our research shows that there has never been
a recess appointment during a 3-day period. I think we have
established that. There is no authority contra to that.
Second, your question then poses what had been the time
limits, what have been the time periods in which intrasession
appointments, recess appointments have been made? And they are
really all over the place. You could see 11 days in Judge
Pryor's case where the Senate was on a brief break. There are
20 days, et cetera. There is no real clear, bright line on
Mr. Scott. The bright line is a resolution passed by the
House and the Senate to go into recess.
Mr. King. Well, the adjournment clause requires, as you
know, the House to agree that the Senate can go into recess for
more than 3 days.
Mr. Scott. Right.
Mr. King. That never happened here, by the way.
Mr. Scott. Well, I think you raised a question of whether
this was in fact a recess. What I am asking is if there is in
fact a recess, not at the end of the session but during the
session, whether or not you have--what your research has shown
as presidents taking advantage of that.
Mr. King. There can be and have been, as you know, recesses
during Congresses that end one session and then we start
Mr. Scott. In the August recess.
Mr. King. That would be the intersession recess
Mr. Scott. Okay. Now----
Mr. King [continuing]. Window, and we agree with the
court's holding on that point.
Mr. Scott. Well, are you aware of any appointments being
made during August recesses over the years?
Mr. King. I believe there have been some. Now the question
is was it an actual recess or not. And that gets back to
whether the Senate was still in session or not.
Mr. Scott. Okay.
What is--Ms. Reynolds, what is the status of the NLRB in
circuits around the country? Because as I understand it, NLRB
is alive and well in some circuits and not in others. Is that
Ms. Reynolds. The party that is aggrieved by an NLRB
decision has a choice of where to file its petition for review.
The party can file either in the circuit where the case arose--
in any of the 11 circuits around the country where the case
arose, or in the D.C. circuit.
So, in all the other 11 circuits other than the D.C.
circuit there has been no ruling that this board was improperly
constituted. And there is no reason to think that those
circuits will rule that way. In fact, the 11th Circuit in the
case of Judge Pryor, which was previously mentioned, ruled that
a recess appointment under just such circumstances was
However, because of the fact that employers, or unions for
that matter, can choose to file their petitions for review in
the D.C. circuit, we do have the potential of this uncertainty
spreading throughout the country.
Mr. Scott. Thank you.
Yield back, Mr. Chairman.
Chairman Roe. I thank the gentleman for yielding.
Mr. Gowdy. Thank you, Mr. Chairman.
Ms. Reynolds, Peter Schaumber's term expired August 27,
2010. Do you know when the president nominated Terence Flynn to
fill that vacancy?
Ms. Reynolds. I believe it was in January of 2011 if I
Mr. Gowdy. Which, help me with math, that would be what, 4,
5 months later?
Ms. Reynolds. That sounds about right.
Mr. Gowdy. Would you agree the timeliness of a nomination
to replace can be some evidence of the importance of the
Ms. Reynolds. I am sorry. Could you repeat the question?
Mr. Gowdy. The length of time it takes one to propose a
replacement, would you agree that that could be evidence of how
significant the vacancy was in the first place?
Ms. Reynolds. Not necessarily. I assume the president has
many things that he is considering.
Mr. Gowdy. So, 5 months is a reasonable amount of time in
your judgment to wait to make an appointment to something as
important as the NLRB.
Do you know, again, who controls the schedule in the
Ms. Reynolds. I have already stated that I do not.
Mr. Gowdy. Would you disagree with me if I told you it was
Ms. Reynolds. I would not disagree.
Mr. Gowdy. Do you know who controls the scheduling of
committee hearings in the Senate?
Ms. Reynolds. I assume that it would be the majority, but I
do not know specifically how that works.
Mr. Gowdy. And the majority would be the Democrats, right?
Ms. Reynolds. Correct.
Mr. Gowdy. Do you know when Harry Reid scheduled a vote on
Ms. Reynolds. No.
Mr. Gowdy. Would you be surprised to know he did not?
Ms. Reynolds. I do not know.
Mr. Gowdy. Would you be surprised to know he did not?
Ms. Reynolds. I really I do not know whether that occurred
or not and----
Mr. Gowdy. You do not know whether you would be surprised
or you do not know whether it happened or not? It did happen.
So my question to you is, are you surprised that the leader of
the Senate never scheduled a vote on one of the NLRB
Ms. Reynolds. I do not know enough about the circumstances
to know whether that is surprising or not.
Mr. Gowdy. Wilma Liebman's term expired August 27, 2011. Do
you know when the president nominated Richard Griffin to fill
Ms. Reynolds. I believe that was in December of 2011. And I
would point out that immediately or very shortly after these
recess appointments were made, all three of the appointees were
nominated again and the Senate still would not allow an up or
down vote on them.
Mr. Gowdy. Which kind of gets us back to the Miguel Estrada
question, does it not? Whether or not the same tactics are
acceptable when there is a Republican administration versus a
Let me ask you about Craig Becker because it looks like his
term expired on January 3, 2012. Do you know when the president
appointed Sharon Block to fill that vacancy?
Ms. Reynolds. The following day I believe.
Mr. Gowdy. Do you think one day is enough time for the
Senate to perform its constitutionally mandated function of
advice and consent?
Ms. Reynolds. There had been a nomination of Ms. Block the
previous month. But the advise and consent----
Mr. Gowdy. Do you think the----
Ms. Reynolds [continuing]. Was not--the Senate was not able
to fulfill its advise and consent function because of the fact
that the nominations were being uniformly put on hold.
Mr. Gowdy. My question to you is says who? I mean who says
the Senate was not able? You agree with me not doing something
is different from not having the power to do something.
Was there a vote scheduled on any of these three nominees
by Democrat leader Harry Reid?
Ms. Reynolds. I believe that that was not possible. And I
am not--I am not citing myself. I am citing Senator Graham.
Mr. Gowdy. Not possible how?
Ms. Reynolds. Senator Graham pledged in his own words to
block Senate confirmation of nominees to the board.
Mr. Gowdy. So Senator Graham writing in a press release
that he pledged to do something carries just as much weight as
the majority leader in the Senate who has control over the
calendar, who never once scheduled them for a vote
Ms. Reynolds. If one senator can place a hold and prevent a
vote from taking place then yes.
Mr. Gowdy. What does the term void ab initio mean?
Ms. Reynolds. It means void from the time when it occurred,
as if it had never happened.
Mr. Gowdy. If these judges were not constitutionally
appointed via recess would you agree that any decisions that
they participated in would be void ab initio?
Ms. Reynolds. If they were in fact not properly on the
board then I mean that will be for the courts to determine. I
would not be surprised if the courts reached that conclusion.
Mr. Gowdy. Well, they would have to right? If they were not
judges then they do.
Ms. Reynolds. Well, board members, yes.
Mr. Gowdy. Last question. What is a recess?
Ms. Reynolds. I have already stated I am not prepared to
give a definition of that at this time. I am not an expert on
Mr. Gowdy. Well, what----
Ms. Reynolds [continuing]. And I am here as a labor lawyer.
Mr. Gowdy. What do you think would be a fair amount of
time? Who gets to decide whether the Senate is in recess or
Ms. Reynolds. Well, ultimately I suppose it will be the
Mr. Gowdy. But who--according to the Constitution who
decides? Who decides whether or not the bodies are in recess or
Ms. Reynolds. The--either House has to consent to the other
being in adjournment for more than 3 days, which was part of
the issue here. But the D.C. Circuit's decision goes far beyond
the question of whether these pro forma sessions prevented a
recess or not. The D.C. Circuit's decision would invalidate
literally hundreds of appointments to all manner of offices by
Presidents Reagan, Bush and Clinton. And----
Mr. Gowdy. Well, we will have to disagree on the
interpretation of the opinion----
Mr. King. Congressman----
Chairman Roe. Gentleman's time is expired.
Mr. King. Congressman, if I may----
Chairman Roe. No, gentleman's time expired.
Mr. Tierney. I am going to just ask maybe a couple of
questions and then turn it over to anybody of my colleagues
here that might want to ask more questions that been here
longer at the hearing. I was delayed at another hearing on
But Mr. King, I guess I will start with you. Are you
troubled at all by the fact that a member of the minority of
the Senate can just make it very clear that they are going to
interfere and stop any nominees from being appointed to a
particular board, and essentially be successful in that?
And then that the House can sort of conspire in one way or
another to make sure there could be no recess or whatever, and
therefore delegitimize an entire section of the United States
Code. It provides for a board to exist and to perform certain
Mr. King. Congressman, that is an excellent question. The
hold procedure that you are speaking about has long been a
policy of the Senate. It works both to the advantage and
disadvantage of either party.
I am not prepared here to tell the Senate or testify on
what the Senate rules should be. The hold procedure I think on
occasion has been used correctly. Perhaps it has been used
incorrectly in other occasions. But I am not going to opine
further than that.
Mr. Tierney. Are you troubled when the House of
Representatives makes it unlikely or impossible for the Senate
to adjourn for what seems fairly obvious to a lot of people,
for ulterior motive of preventing appointments from being
Mr. King. The Constitution clearly provides under the
adjournment clause that the House must agree before the Senate
can adjourn for more than 3 days. I support the Constitution
Mr. Tierney. So it does not trouble you that it would be
used in that way?
Mr. King. The Constitution does not trouble me.
Mr. Tierney. But the use of the Constitution in that
process by the House toward a means like this does not trouble
Mr. King. I think----
Mr. Tierney. Because we understand it can be used either
way if other people----
Mr. King. Certainly.
Mr. Tierney [continuing]. Wanted to play that game.
Mr. King. There are checks and balances provided for in the
Constitution that I support and I believe my clients would
Mr. Tierney. In this instance at least, right?
I defer to----
Mr. Andrews. I thank my friend for yielding.
Mr. King, what is your understanding of why the purpose of
the constitutional provision that requires House consent to
Senate adjournment of more than 3 days? Why is that provision
in the Constitution?
Mr. King. As a check and balance to ensure, Mr. Andrews,
that the bodies of Congress, the House and Senate are available
to do business.
Mr. Andrews. Yes----
Mr. King. I think that is the basic tenet.
Mr. Andrews. Right. I think the concern was--I do not know
this either, but the logic would tell us that the concern was
that the Senate would simply stop doing anything. There has
been some precedent for that has there not, colleagues? Would
just stop doing anything and bring the business of the country
to a halt. You think that is the constitutional purpose?
Mr. King. I think that is one objective that the framers in
all likelihood had in mind.
Mr. Andrews. Can you think of any others?
Mr. King. With respect to the adjournment clause?
Mr. Andrews. The purpose of that clause, the House consent
part of it.
Mr. King. I do not know of any other central objective, Mr.
Mr. Andrews. I do not either. And it is worth taking a look
Now if the purpose of that clause is to prevent the Senate
from paralyzing any activity in the government, would not a
very fair reading of that clause be that if the purpose of the
recess is simply to--or rather the purpose of the pro forma
session is simply to say you are in session for the purpose of
avoiding presidential appointments, that that would be an
invalid exercise of that power?
Mr. King. No, I do not agree with that.
Mr. Andrews. Why do you disagree with that?
Mr. King. I do not believe it is appropriate whether it be
Republican or Democrat to have a president recess appoint
anyone over a lunch period, over a 3-day holiday. I do not
agree with the previous testimony----
Mr. Andrews. Is it a matter of time or is it a matter of
whether the pro forma session really is a session or not,
whether the Senate is really available to act or not? Because
why would the consent clause be necessary and why would it say
3 days if that were not the purpose, vitiating this purpose of
the Constitution? Why do we have that provision?
Mr. King. The fact of the matter is, Mr. Andrews, the
Senate was available to do business during the time period we
are talking about here. It passed the payroll tax extension,
the temporary extension. It would----
Mr. Andrews. For the record here, and Mr. Gowdy is not here
anymore, but I agree with his historical rendition of this that
it was our party that really started this phony 3-day recess
stuff. But that does not make it right. And I have my own
doubts about the constitutional validity of the payroll tax
extension being passed that way. I think that is a very fair
line of questioning.
But what I would say to you is that you and I had a
dialogue a few minutes ago about the limits of the advise and
consent clause. And I think you sort of touched on one here. I
think if the purpose of a pro forma session is to avoid
presidential appointments that is an invalid exercise of that
clause. It is something you ought to think about.
Chairman Roe. I thank the gentleman for yielding.
Mr. DesJarlais. Thank you, Mr. Chairman.
Mr. King, the NLRA requires a board quorum consisting of at
least three members to perform a number of actions. What board
actions require a board quorum?
Mr. King. Certainly decision making. And we have over 1,000
decisions that are impacted since this whole controversy arose.
Further board actions required for appointments of regional
directors, and we have 18 of the 28 regional directors in
doubt, as we state in our testimony, because they were approved
by board action when there was not a lawful quorum.
We also have the question of delegation to the acting
general counsel for injunction relief. That delegation occurred
in November of 2011. That, from our perspective, was not a
proper delegation. So that is an action that would be impacted.
And the board also has the authority by statute to engage
in rulemaking. This board with only three members in the latter
part of 2011, one of whom was a recess appointee, Craig Becker,
passed one of the most far-reaching rules on the election
process under the National Relations Act ever. So, the board
has rulemaking authority. That is an action--that is
invalidated we believe after Noel Canning also. That is some
examples, if you will, of board action.
Mr. DesJarlais. Okay. Thank you.
Mr. King, what is the source of precedence relating to the
interpretation of the recess appointments clause?
Mr. King. There are many, Congressman. The Federalist
Papers, comments made by the framers of the Constitution,
interpretations by various attorney generals, interpretation by
the courts. But at bottom there is very little judicial
precedent on this issue that we are discussing today.
And you raise a good question. That is why it is the
position of the Chamber and the CDW that the administration
should expeditiously seek certiorari. Avoiding this issue will
not help anybody. It is going to get to the Supreme Court at
Now, whether the court hears it or not that is
discretionary of course. But waiting for other circuit courts,
that is a waste of time and money. It hurts employees, it hurts
unions, it hurts employers. Let us get on with it.
Mr. DesJarlais. Was Noel Canning a case of first impression
in the U.S. Court of Appeals for the District of Columbia?
Mr. King. Yes, sir. On the points we are talking about
today I believe that to be true.
Mr. DesJarlais. Have any other federal courts of appeal
issued decisions relating to the constitutionality of
intercession recess appointments?
Mr. King. There are three other decisions. The 11th, the
2nd and the 9th Circuits have issued opinions in this area on
intrasession recess appointments and also the happening during
recess issued. I would hasten to add that the facts in each of
those cases are different than the facts we have here today.
There were more than 3 days that had passed in each of
those cases. There was not a recess appointment during the 3-
day period that we have been discussing today. But I would
concede that we have three circuits that have a different view
of the recess appointments clause.
All the more reason, Mr. Congressman, to get on with it and
seek cert today; we do not have to wait for another circuit to
issue a decision. This is ripe for certiorari today.
Mr. DesJarlais. Thank you, Mr. King.
Mr. LaJeunesse, what advice are you giving employees in the
wake of Noel Canning?
Mr. LaJeunesse. Well, I am not going to breach attorney-
client privilege, Congressman. But generally speaking we advise
employees who have cases before the board with unfair labor
practice charges against unions and employers, and cases--
representation cases to make motions to disqualify the board
from acting. And we do that in every case now based on Noel
We did it before based on the general principles involved,
constitutional issues. And on Monday we filed a petition for
mandamus or prohibition with the D.C. Circuit, asking the D.C.
Circuit to tell the board to stop acting in the Kent Hospital
case, which is the case in which this rogue board decided that
objecting non-members can be forced to pay for union lobbying.
Ms. Reynolds. May I respond?
Mr. DesJarlais. Reclaiming my time. Actually I think I am
just about out of time.
Mr. LaJeunesse. And to finish off my point, where the board
has decided cases we advise our clients to go to the D.C.
Circuit on petitions for review in unfair labor practice cases.
Mr. DesJarlais. I yield back.
Chairman Roe. I thank the gentleman for yielding.
Now I see no other questioners here. I will yield to Mr.
Andrews, closing remarks.
Mr. Andrews. I thank the chairman. I thank the witnesses
who were very thoroughly prepared; I think they did a very good
job answering our questions. It is a pleasure to have all of
As a retired adjunct law professor, I found this really fun
and interesting, which says a lot about my life.
Mr. King. You went to the--Mr. Andrews, you went to the
right law school. You know that.
Mr. Andrews. So did you, Mr. King.
Mr. King. Thank you.
Mr. Andrews. So did you. We are proud of you.
But I think there is a practical problem that has to be
addressed here. And that is the board is not functioning
because of this political stalemate. And I really do believe
the right way to resolve this is to put these two nominations
up for a vote in the Senate. And as happened with Judge Bork,
if people do not want to support the nomination, vote no. If 51
people vote no it will fail. Then the president has to put
someone else up.
And let us get the board functioning again by insisting
that the Senate take a vote, an up/down vote on the people who
were nominated. If they receive majority support, they will be
appointed. They will make decisions. Some of us will like their
decisions. Some will not. There are processes through
legislation, through litigation, through the political process
to change that outcome.
I think that we are here because the Senate I believe has
abused the advise and consent clause. I think that there is a
difference between using the power of that clause to assert
your political point of view and paralyzing the executive
I, by the way, do not think that that abuse has been
limited to the Republican Party in these last few years. I
think it is been a chronic problem in our government for the
last couple of decades. I do think that that problem has
metastasized in the last 2 or 3 years. If one looks at the
number of filibusters that have been launched, it
qualitatively, qualitatively exceeds any number of filibusters
in prior years.
For the record, since we are all pretending to be senators
today, I think that one thing the Senate should do is actually
require a real filibuster instead of just saying you are going
to do one. I think that if Senator Graham or whomever else
would want to filibuster these two nominees, that he should
have to go to the floor and hold the floor for as long as the
others will permit him to do it like Jimmy Stewart did, right?
I think that is what really ought to happen rather than just
filing a paper and saying oh, by the way, Mr. Majority Leader,
you are going to have to get 60 votes for this.
I think some of these nominees might be defeated. And if
they are, fine, you find another one. But the practical problem
here is not to have nine justices in black robes make this
decision. It is to have 100 senators duly elected by the people
cast an up or down vote. People either get confirmed or they do
not. I think that is the solution.
I thank the witnesses for their time and their preparation.
Chairman Roe. I thank the gentleman for yielding. I also
would like to associate myself with Mr. Andrews' remarks. And
thank you all for being here. You all were very well prepared.
And I am not like him. This is a little different for me being
a doctor versus being a lawyer. Thank goodness I am a doctor.
I do--I do think that we absolutely do need a functioning
National Labor Relations Board. And the reason we need that is
because of the uncertainty that is out there in business now. I
mean if I am a business person and I have an issue I do not
know what to do with that issue right now because I know that
the what, 600 or whatever it was, when both sides agreed the
board said you do not have a quorum, those were all overturned.
Look at the amount of money, time, energy, resources that were
put to that and not job creation. We are right down on the same
path. I could not agree more, Mr. King, with you that we need
to get this to the Supreme Court.
And Ms. Reynolds, with all due respect, you know the
constitutional issue, I did not agree with the Constitution on
abortion. I do not agree with the Constitution on health care.
But it is the law of the land. We have a court system. We have
a system of checks and balances that determine that. And when
it is inconvenient and I don't like it that does not make it
So, I think we have a much bigger issue here of the
constitutionality of this. And we have a system of checks and
balances where one branch of government does not become more
powerful than the other. It is clumsy. It is messy. Sometimes
it seems like it works in glacial speed. But it has worked for
And I think it is extremely important for us to maintain
and follow the Constitution of this country, which is the law
of the land. That has set us apart from every other nation on
this earth, the Constitution. And so I think it is a much
I have enjoyed this so much, listening to all the diverse
opinions. I think this is going to continue. I think this
discussion will continue, and I certainly hope the board is--
the president can appoint people that can be approved and we
can get this board functioning and our businesses back to work.
I want to thank you for taking your time. With no further
comments, the meeting is adjourned.
[Additional submission of Mr. LaJeunesse follows:]
National Right to Work Legal Defense Foundation, Inc.,
Springfield, VA, February 19, 2013.
Hon. Phil Roe, Chairman,
Subcommittee on Health, Employment, Labor, & Pensions, 2181 Rayburn
House Office Building, Washington, DC 20515.
Re: Hearing on ``The Future of the NLRB: What Noel Canning vs. NLRB
Means for Workers, Employers, and Unions''
Dear Chairman Roe: Thank you again for inviting me to testify
during your Subcommittee's hearing on February 13.
Unfortunately, after I had already submitted my Written Statement
for the record, I noticed that I had omitted the word ``rejected' on
the fourth line of page 12. The paragraph in question should read
The Board majority in United Nurses explicitly declined to follow a
directly contrary holding of the Ninth Circuit, Cummings v. Connell.
The majority, including two purported Members whose appointments were
held invalid in Noel Canning, argued that unions' conduct under Beck
``is properly analyzed under the duty of fair representation,'' not ``a
heightened First Amendment standard'' as in public-sector cases such as
Hudson and Cummings. However, the D.C. Circuit had already rejected
that argument in an earlier Board case.
I would appreciate it if this errata letter could be included in
the record of the hearing.
Raymond J. LaJeunesse, Jr.
[Whereupon, at 11:37 a.m., the subcommittee was adjourned.]