On Friday the House of Representatives narrowly passed the Preventing Greater Uncertainty in Labor-Management Relations Act (H.R. 1120) by a vote of 219-209. The measure was approved largely along party lines, although 10 Republican members did vote against it. This bill would limit National Labor Relations Board activities until at least three members are confirmed by the Senate, President Obama’s recess appointees’ terms expire, or until the U.S. Supreme Court weighs in on the legitimacy of the recess appointments. Specifically, this bill would prevent the Board from implementing, administering, or enforcing any decision, rule, vote, or other action decided, undertaken, adopted, issued, or finalized on or after January 4, 2012 – the date the President sat three members via recess appointment – that requires a quorum. The measure would allow NLRB regional offices to continue to accept and process unfair labor practice charges. In the event additional Board members are validly confirmed, all of the actions carried out by the prior Board staffed with the recess appointees would require review.
During floor debate, Rep. John Kline (R-MN), Chairman of the House Committee on Education and the Workforce, said “Never has [the Board] faced this level of confusion and uncertainty. . . . Roughly 600 Board decisions are constitutionally suspect, and that number continues to grow.” Kline stated that H.R. 1120 “is an appropriate congressional response to an unprecedented” presidential action.
Speaking in opposition to the bill, Rep. Robert Andrews (D-NJ) noted repeatedly that prior presidents – both Republican and Democrat – availed themselves of the same recess appointment process. Rep. Rosa DeLauro (D-CT) called the bill “a transparent attempt to simply shut down the NLRB.” Many others who spoke against the measure urged the Senate to simply take a vote on the five Board nominees.
Earlier this week, President Obama re-nominated Mark Gaston Pearce to serve as NLRB Chairman, and named Harry I. Johnson, III and Philip A. Miscimarra to fill the two vacant Republican seats. In February, the President re-nominated Democrats Sharon Block and Richard Griffin – two of the three recess appointees in question – to the Board. It remains uncertain whether the Senate will act on any of these nominations.
Despite the House’s approval of the Preventing Greater Uncertainty in Labor-Management Relations Act, the bill is unlikely to advance in the Democrat-controlled Senate. Even if the Senate were to approve the measure, President Obama has reportedly threatened to veto it.
The vote is indicative, however, of the frustration felt by many lawmakers over the uncertainty that exists in labor law today. Hundreds of Board decisions – some dealing with emerging social media policies that impact nonunion employees as well – are in jeopardy of being invalidated.