The U.S. House Committee on Education and the Workforce approved along party lines the Preventing Greater Uncertainty in Labor-Management Relations Act (H.R. 1120). The bill would require the NLRB to suspend all activities that require a three member quorum and prohibit the enforcement of any quorum-required action taken after President Obama seated three members via recess appointment on January 4, 2012. As previously discussed, the impetus for this bill – and several others – was the U.S. Court of Appeals for the D.C. Circuit’s finding in Noel Canning v. NLRB that the recess appointments to the NLRB were unconstitutional.
The measure considered during Wednesday’s Committee markup session would remove the restrictions on the Board’s authority if the U.S. Supreme Court rules on the constitutionality of the recess appointments; a board quorum is constitutionally confirmed by the Senate; or the terms of the recess appointees expire when the first session of the 113th Congress adjourns. The bill would also require that any action involving the recess appointees be reviewed and ratified by a future constitutionally-approved Board.
Opening the hearing, Chairman John Kline (R-MN) asserted that the “non-recess, recess appointments” continue to “taint the work of the NLRB.” According to Kline, each Board decision is “ripe” for challenge in the wake of Noel Canning, leaving the workplace in a “state of legal limbo.” Kline urged the Committee to pass the bill, and the Senate to “nominate a full slate of qualified nominees” to the Board.
Rep. Robert Andrews (D-NJ), however, disagreed with what he termed a “manufactured crisis,” and suggested the way to solve the problem is to encourage the Senate to vote on the current Board members. Andrews said the bill in its current form would leave the NLRB without any enforcement authority. As a result, he claimed that this outcome would leave employees with no other means with which to address their claims other than by striking. Andrews offered an amendment to the measure that would essentially nullify it in its entirety, which predictably failed to pass.
More information on the markup session can be found here.