[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

=======================================================================

                                HEARING

                               before the

                        SUBCOMMITTEE ON HEALTH,
                    EMPLOYMENT, LABOR, AND PENSIONS

                         COMMITTEE ON EDUCATION
                           AND THE WORKFORCE

                     U.S. House of Representatives

                    ONE HUNDRED THIRTEENTH CONGRESS

                             FIRST SESSION

                               __________

           HEARING HELD IN WASHINGTON, DC, FEBRUARY 13, 2013

                               __________

                            Serial No. 113-2

                               __________

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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

                              ----------                              
                                                                   Page

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 
      Workplace..................................................    33
        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

Additional Submissions:
    Mr. King, attachments to prepared statement, Internet address 
      to.........................................................    44
    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

                             Washington, DC

                              ----------                              

    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, 
and Wilson.
    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 
protected.
    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 
bargaining.
    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 
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 continue to do its work in a more responsible 
manner.
    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 
opening remarks.
    Mr. Andrews?
    [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 
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 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 
upon 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 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 
unresolved.
    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 
bargaining.
    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 
fairness.
    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 
goal.
    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 
Board.
    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 
negative role.
    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 
doing.
    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 
of witnesses.
    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 
your testimony.

                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 
same.
    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 
that employee.
    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. 
Thank you.
    [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 
relationship.
    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 
Co.
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 
articulated.
    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 
confidential.
    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 
rhetoric.''
    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 
                        FOUNDATION, INC.

    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 
Relations Board.
    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 
untimely.
    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 
own holding.
    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 
fair representation.''
    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 
agreements.
    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 lobby.
    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 
legislative activities.''
    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 
Court.
    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 
current law.
    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 
day.\12\
    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 
Appeals precedent.
    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 
special assessments.
    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 
time.''\22\
    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 
collective bargaining.''\41\
    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 
political world.''\44\
    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.
                                endnotes
    \1\ 487 U.S. 735 (1988).
    \2\ http://nilrr.org/files/
Big%20Labor%20Political%20Spending%20in%20the%202010%20Election%20Cycle.
pdf.
    \3\ Quoted in Abood v. Detroit Bd. of Educ., 431 U.S. 209, 234 n.31 
(1977).
    \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), 
at 3.
    \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 
decision).
    \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. 
1980).
    \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.
    Ms. Reynolds?

    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 
three members.
    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 
solution.
    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 
you.
    [The statement of Ms. Reynolds follows:]

    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
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    Chairman Roe. Thank you, Ms. Reynolds.
    Mr. King?

 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 
percent.
    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 
recess appointment.
    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 
courts.
    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 
constitutional restraint.
    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 
consider.
    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 
community.
    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 
impacted.
    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 
general counsel.
    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 
                               Workplace

    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 & 
        Becker)
June 22, 2010 through August 27, 2010: Four confirmed Members (Liebman, 
        Schaumber, Pearce, & Hayes) and one intrasession recess 
        appointee (Becker)
August 28, 2010 through August 27, 2011: Three confirmed Members 
        (Liebman, Pearce, & Hayes) and one intrasession recess 
        appointee (Becker)
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 
        & Hayes)
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 & 
        Block)
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 
enforced.
    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/
202407- obama-recess-appoints-his-nominees-to-controversial-labor-board 
(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 
the NLRA.
    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 
647.
    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 
unlawful policies:
    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, 
2011); and
    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, 
2012).\7\
    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 
Act.
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 
Committee.
    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 
unionization.
    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 
quorum requirement.
    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 
business.

Legal, Policy, And Practical Consequences Of The D.C. Circuit's Noel 
        Canning Decision
            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://
www.nlrb.gov/news/statement-chairman-pearce-recess-appointment-ruling. 
Chairman Pearce's comments on behalf of the Board were, at best, ill-
advised.
    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 
offices.
    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 
recess.
    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 
        Issues
    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 
court.'' Id.
    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 
Board actions.
    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.

Conclusion
    In conclusion, Mr. Chairman, I would be happy to take any questions 
the Committee might have regarding my testimony.

                                ENDNOTES

    \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 
this testimony.
    \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 
http://www.oyez.org/sites/default/files/cases/briefs/pdf/brief 08-1457 
1.pdf.
    \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 
Fitness.
    \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 
litigation.
    \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. 
10, 2013).
    \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 
http://democrats.edworkforce.house.gov/sites/
democrats.edworkforce.house.gov/files/documents/112/pdf/
Recess%20Appointments%201981-2013.pdf (last visited Feb. 11, 2013).
                                 ______
                                 
    [Appendices to Mr. King's statement may be accessed at the 
following Internet address:]

        http://www.gpo.gov/fdsys/pkg/CPRT-113HPRT78694/pdf/CPRT-
                            113HPRT78694.pdf

                                 ______
                                 
    Chairman Roe. I thank the panel. And I am going to yield to 
our chairman who has another obligation.
    Mr. Kline?
    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 
interests----
    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 
2011?
    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 
members.
    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 
concern here.
    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?
    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 
consideration.
    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 
the nominees.
    Mr. Andrews. Should they put them up for a vote or not?
    Mr. Lorber. It would be up to the committee and then the 
Senate----
    Mr. Andrews. You do not have an opinion on that?
    Mr. Lorber. No.
    Mr. Andrews. Mr. LaJeunesse, did I pronounce your name 
correctly? LaJeunesse?
    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, 
and----
    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 
way possible.
    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 
day----
    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 
perfectly fine.
    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 
place.
    Mr. Andrews. Mr. King, what do you think? Do you think that 
these nominations should be put to an up/down vote in the 
Senate?
    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 
confirmed.
    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 
process----
    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 
opinion?
    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, 
I----
    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 
circumstance.
    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 
the Senate.
    Chairman Roe. I do not think so.
    Mr. Andrews. I think he got the up/down vote and the Senate 
wisely rejected----
    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 
do so.
    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 
us well.
    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 
happened here.
    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 
person.
    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 
employment.
    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.
    Dr. Holt?
    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 
senators voting.
    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 
saying that?
    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 
agreement.
    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 
party.
    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 
day.
    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 
invalid.
    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 
justice.
    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 
hearing today.
    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 
him?
    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 
review articles.
    Mr. Gowdy. Did you write any columns in any trade magazines 
on it?
    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 
appointments?
    Ms. Reynolds. I am usually too busy practicing law to write 
op-ed pieces.
    Mr. Gowdy. Well, we appreciate you taking time out of your 
busy practice of law to come today. What is your definition of 
a recess?
    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 
something?
    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, 
and unions.
    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 
recess appointment?
    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 
Democrats did?
    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 
occurring.
    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?
    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 
the decision?
    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 
that recess?
    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 
intrasession----
    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 
another session.
    Mr. Scott. In the August recess.
    Mr. King. That would be the intersession recess 
appointment----
    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 
accurate?
    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 
constitutional.
    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?
    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 
recall correctly.
    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 
vacancy itself?
    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 
Senate?
    Ms. Reynolds. I have already stated that I do not.
    Mr. Gowdy. Would you disagree with me if I told you it was 
the Democrats?
    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 
Terence Flynn?
    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 
replacement appointees?
    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 
her vacancy?
    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 
Democrat administration.
    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 
congressional procedure----
    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 
not?
    Ms. Reynolds. Well, ultimately I suppose it will be the 
Supreme Court.
    Mr. Gowdy. But who--according to the Constitution who 
decides? Who decides whether or not the bodies are in recess or 
not?
    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?
    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 
that.
    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 
functions.
    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 
filled?
    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 
provision there.
    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 
you?
    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 
certainly support.
    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. 
Andrews.
    Mr. Andrews. I do not either. And it is worth taking a look 
at.
    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.
    Yield back.
    Chairman Roe. I thank the gentleman for yielding.
    Dr. DesJarlais?
    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 
some point.
    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 
Canning.
    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 
you here.
    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 
branch.
    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 
not constitutional.
    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 
220 years.
    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 
bigger issue.
    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 
(footnotes omitted):
    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.
            Sincerely yours,
                                 Raymond J. LaJeunesse, Jr.
                                 ______
                                 
    [Whereupon, at 11:37 a.m., the subcommittee was adjourned.]

                                 
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