CONGRESSWOMAN ELISE STEFANIK
On Thursday, April 11, 2013, the House will consider H.R. 1120, the Preventing Greater Uncertainty in Labor Management Relations Act, under a rule. H.R. 1120 was introduced by Representative David Roe (R-TN) on March 13, 2013 and has 25 cosponsors. H.R. 1120 was reported out of the House Committee on Education and Workforce on March 20, 2013 by a vote of 23-15.
H. R. 1120 responds to the current legal uncertainty associated with the National Labor Relations Board (NLRB) as a result of the President’s unconstitutional recess appointments and the recent decision issued by the United States Court of Appeals for the District of Columbia. Specifically, H.R. 1120 requires the NLRB to cease all activity that requires a quorum and prohibits the NLRB from enforcing any action taken on or after January 4, 2012. The restrictions terminate when one of three events occurs: (1) all members of the NLRB are confirmed with the advice and consent of the Senate; (2) the U.S. Supreme Court issues a decision on the constitutionality on the appointments to the NLRB in January 2012; or (3) the adjournment sine die of the first session of the 113th Congress. Finally, H.R. 1120 provides that if the restrictions terminate pursuant to (1) and (3) no action may be enforced unless and until it is considered by a NLRB constituting a quorum as set forth in the National Labor Relations Act or the Supreme Court issues a decision on the constitutionality of the recess appointments.
On January 4, 2012, President Obama made three recess appointments to the NLRB, despite the fact that the Senate was meeting regularly in pro forma sessions. The validity of the appointments was challenged by Noel Canning, a soft drink distributor located in the Pacific Northwest, in addition to a number of other employers in various federal courts across the nation. On January 25, 2013, the United States Court of Appeals for the District of Columbia (the Court) unanimously held that the recess appointments were unconstitutional. In its decision, the Court held that “the Board must have a quorum of three in order to take action.” The Court went on to say that “the appointments were invalid from their inception and [b]ecause the Board lacked a quorum of three members when it issued its decision …, its [Board’s] decision must be vacated.”
Despite the Court’s decision, the Board’s Chair publically announced that it would not abide by the Court’s decision – releasing the following statement:
“The Board respectfully disagrees with today’s decision and believes that the President’s position in the matter will ultimately be upheld. It should be noted that this order 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. In the meantime, the Board has important work to do. The parties who come to us seek and expect careful consideration and resolution of their cases and for that reason, we will continue to perform our statutory duties and issue decisions.”
The case is significant because it’s now controlling in the D.C. Circuit Court of Appeals. Moreover, because of the special role that the Court of Appeals has in NLRB jurisprudence, the decision has the potential to impact every allegation of an unfair labor practice. In addition to the costs of additional litigation, the uncertainty and lack of predictability associated with continued operations goes against the purpose of the National Labor Relations Act, which is to mitigate or eliminate obstacles to the free flow of commerce. Until the U.S. Supreme Court rules, both employers and employees will be vulnerable to the decisions made by a constitutionally infirm Board.
 See Canning v NLRB No. 12-1115, January 25, 2013.
 See id, page 30.
 See CRS: The National Labor Relations Act (NLRA) Union Procedures and Dispute Resolution, January 3, 2013, page 2.)
There is no cost associated with the bill.