The House Committee on Education and the Workforce, chaired by Rep. John Kline (R-MN), held its hearing Wednesday, February 7, 2012 titled, “The NLRB Recess Appointments: Implications for America’s Workers and Employers.”

As Chairman Kline explained in his opening remarks, the Committee’s "primary concern is the fear and uncertainty [that President Obama’s] action [in making three recess appointments to the National Labor Relations Board ("NLRB")] has unleashed – the fear of the activist NLRB’s future actions and the uncertainty of whether its mandates and decisions can stand under constitutional scrutiny.”

Given that the Chairman framed the issue as a "constitutional crisis," noting, “[t]he highly controversial nature of the appointments guarantees the rules and decisions the new board members adopt will be constitutionally suspect and legally challenged," it is no wonder that the recess appointments did not weather well under the Workforce Committee’s aggressive oversight.

Chairman Kline continued his assault on President Obama’s recess appointments by referring to President Obama’s actions taken during the Senate’s pro forma sessions as, creating an "embarrassing contradiction":

According to the rationale of the administration, pro forma sessions are nothing more than a “gimmick” that do not interrupt a recess of Congress; therefore, the president can fill these positions without the Senate’s consent. Decisions based on shaky legal ground can often lead to embarrassing contradictions. Days before the president decided to become the arbiter of congressional rules and proceedings, Congress approved a bill to prevent a tax hike on millions of Americans. Later that day the president signed that very same bill into law. Either the payroll tax cut passed by the Senate during a pro forma session is the law of the land and the recess appointments are invalid, or 170 million Americans are receiving tax relief unlawfully and the appointments should stand. No amount of legal manipulation can allow the president to have it both ways.

Charles J. Cooper, an experienced constitutional law attorney, gave testimony and referred to the same inconsistent conduct as an " inconvenient truth":

In passing the payroll tax cut extension, the Senate acted by unanimous consent, the same procedure by which the Senate confirms most presidential nominees. If the Senate can pass legislation by unanimous consent during a pro forma session, then it can surely confirm the President’s nominees in the same manner, especially if there is an immediate and indisputable need for it to do so."

Mr. Cooper also used President Obama’s own words in speaking about his appointment of Richard Cordray to the position of Consumer Financial Protection Bureau ("CFPB") Director (who was appointed in the same controversial recess appointments) to suggest that the appointments were a calculated move to sidestep the Senate:

President Obama abandoned any pretense that he was acting because the Senate was unavailable to consider the nomination. To the contrary, the President declared that he was making the recess appointment despite the fact that the Senate had been considering the nomination for over six months. This is what he said: “Now, I nominated Richard [Cordray] for [the position of Consumer Financial Protection Bureau ("CFPB")] last summer . . . For almost half a year, Republicans in the Senate have blocked Richard’s confirmation. They refused to even give Richard an up or down vote . . . .” The President was not complaining that the Senate was unavailable or unable to confirm Mr. Cordray. He was complaining that the Senate refused to confirm Mr. Cordray. And, as he candidly proclaimed: “I refuse to take no for an answer.” Thus, the President himself has openly acknowledged that his purpose in recess appointing Mr. Cordray to the CFPB had nothing to do with the only purpose offered by his lawyers at OLC as providing a constitutional justification for the exercise of his power to do so. The President’s January 4 recess appointments were driven not by any concern that the Senate was unavailable to perform its constitutional role in the appointment of government officers, but rather by the President’s determination, openly avowed, to circumvent the Senate’s role.

Former Democrat board member, Dennis M. Devaney, and former regional attorney for the NLRB, Stefan J. Marculewicz, also gave testimony that, by and large, focused on the practical implications of the President’s appointments. The glaring concern they noted, is a repeat of New Process Steel, L.P. v. NLRB, 130 S.Ct. 2635. But as Mr. Marculewicz noted, now the stakes are higher. The cases decided by the two-member board at issue in New Process Steel were generally non-controversial and the NLRB was able to revisit those cases without many lasting effects. Now, and with a full five-member Board, the NLRB is likely to rule on more substantive issues with far-reaching implications. A few hot-button issues coming up include:

  1. Employees and Social Media: The NLRB will likely issue its stance on protections for employees who use social media to engage in concerted activities as there has been little guidance from the Board on how it will deal with these issues, though the Board’s Office of the General Counsel has been active on this issue, which we reported on here.
  2. Employee Property Rights and Email Access: Roundy’s Inc., 356 NLRB No. 27 (November 12, 2010), currently before the Board, will address the issue of access to the employer’s premises by nonemployee union agents, employer private property interests, and protected section 7 rights. It also raises the broader issue of the proper analytical framework used to determine discrimination under the Act.
  3. The Scope of Specialty Healthcare: The scope of Specialty Healthcare, 357 NLRB No. 83 (2011), wherein the Board enunciated a new standard for determining the appropriateness of bargaining units and stated that groups of employees who are "readily identifiable as a group (based on job classifications, departments, functions, work locations, skills, or similar factors)" will be considered appropriate bargaining units.

Although plaintiff-side proponents of the recess appointments are concerned about workers losing their rights, based on Chairman Klein’s closing statement that "[t]o protect workers and employers, the committee will continue to conduct aggressive oversight of the so-called recess appointments and future actions taken by the Obama board," this is going to be an issue that is not going away and one that bears watching.