[House Hearing, 112 Congress]
[From the U.S. Government Printing Office]
THE NLRB RECESS APPOINTMENTS: IMPLICATIONS FOR AMERICA'S WORKERS AND
COMMITTEE ON EDUCATION
AND THE WORKFORCE
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED TWELFTH CONGRESS
HEARING HELD IN WASHINGTON, DC, FEBRUARY 7, 2012
Serial No. 112-51
Printed for the use of the Committee on Education and the Workforce
Available via the World Wide Web:
Committee address: http://edworkforce.house.gov
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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 Dale E. Kildee, Michigan
Judy Biggert, Illinois Donald M. Payne, New Jersey
Todd Russell Platts, Pennsylvania Robert E. Andrews, New Jersey
Joe Wilson, South Carolina Robert C. ``Bobby'' Scott,
Virginia Foxx, North Carolina Virginia
Bob Goodlatte, Virginia Lynn C. Woolsey, California
Duncan Hunter, California Ruben Hinojosa, Texas
David P. Roe, Tennessee Carolyn McCarthy, New York
Glenn Thompson, Pennsylvania John F. Tierney, Massachusetts
Tim Walberg, Michigan Dennis J. Kucinich, Ohio
Scott DesJarlais, Tennessee Rush D. Holt, New Jersey
Richard L. Hanna, New York Susan A. Davis, California
Todd Rokita, Indiana Raul M. Grijalva, Arizona
Larry Bucshon, Indiana Timothy H. Bishop, New York
Trey Gowdy, South Carolina David Loebsack, Iowa
Lou Barletta, Pennsylvania Mazie K. Hirono, Hawaii
Kristi L. Noem, South Dakota Jason Altmire, Pennsylvania
Martha Roby, Alabama
Joseph J. Heck, Nevada
Dennis A. Ross, Florida
Mike Kelly, Pennsylvania
Barrett Karr, Staff Director
Jody Calemine, Minority Staff Director
C O N T E N T S
Hearing held on February 7, 2012................................. 1
Statement of Members:
Kline, Hon. John, Chairman, Committee on Education and the
Prepared statement of.................................... 3
Miller, Hon. George, senior Democratic member, Committee on
Education and the Workforce................................ 4
Prepared statement of.................................... 5
Statement of Witnesses:
Cooper, Charles J., Partner, Cooper & Kirk, PLLC............. 8
Prepared statement of.................................... 9
Davis, Susan, partner, Cohen, Weiss and Simon, LLP........... 20
Prepared statement of.................................... 23
Devaney, Dennis M., member, Devaney Jacob Wilson, PLLC....... 16
Prepared statement of.................................... 18
Marculewicz, Stefan J., Esq., Littler Mendelson, P.C......... 38
Prepared statement of.................................... 40
Kucinich, Hon. Dennis J., a Representative in Congress from
the State of Ohio:
Article, ``More Lockouts as Companies Battle Unions,''
New York Times, January 22, 2012....................... 59
THE NLRB RECESS APPOINTMENTS:
IMPLICATIONS FOR AMERICA'S
WORKERS AND EMPLOYERS
Tuesday, February 7, 2012
U.S. House of Representatives
Committee on Education and the Workforce
The committee met, pursuant to call, at 10:03 a.m., in room
2175, Rayburn House Office Building, Hon. John Kline [chairman
of the committee] presiding.
Present: Representatives Kline, Petri, McKeon, Wilson,
Foxx, Goodlatte, Roe, Walberg, DesJarlais, Hanna, Rokita,
Gowdy, Barletta, Roby, Kelly, Miller, Kildee, Andrews, Scott,
Woolsey, Hinojosa, McCarthy, Tierney, Kucinich, Holt, Davis,
Grijalva, Bishop, and Altmire.
Staff present: Katherine Bathgate, Press Assistant/New
Media Coordinator; Casey Buboltz, Coalitions and Member
Services Coordinator; Molly Conway, Professional Staff Member;
Ed Gilroy, Director of Workforce Policy; Benjamin Hoog,
Legislative Assistant; Marvin Kaplan, Workforce Policy Counsel;
Barrett Karr, Staff Director; Ryan Kearney, Legislative
Assistant; Brian Newell, Deputy Communications Director;
Krisann Pearce, General Counsel; Molly McLaughlin Salmi, Deputy
Director of Workforce Policy; Linda Stevens, Chief Clerk/
Assistant to the General Counsel; Alissa Strawcutter, Deputy
Clerk; Loren Sweatt, Senior Policy Advisor; Kate Ahlgren,
Minority Investigative Counsel; Aaron Albright, Minority
Communications Director for Labor; Tylease Alli, Minority
Clerk; Kelly Broughan, Minority Staff Assistant; Jody Calemine,
Minority Staff Director; John D'Elia, Minority Staff Assistant;
Brian Levin, Minority New Media Press Assistant; Celine
McNicholas, Minority Labor Counsel; Richard Miller, Minority
Senior Labor Policy Advisor; and Megan O'Reilly, Minority
Chairman Kline. A quorum being present, the committee will
come to order.
Well, good morning, everybody. Welcome to our guests. We
are fortunate to have a distinguished panel of witnesses today,
and I want to thank all of you for your participation.
In January, President Obama shocked many across the country
when he made three so-called ``recess appointments'' to the
National Labor Relations Board, despite the Senate not being in
recess. This action touches upon a number of constitutional
powers. The first is the president's authority to fill a
vacancy through recess appointments, a power which no one
The other constitutional power involved allowed for
Congress to, ``determine the rules of its proceedings.'' and
prevent one body of the legislative branch from adjourning more
than 3 days without the consent of the other. Senate Democrats
understood the value of these constitutional principles in
2007, when they first established the practice of convening pro
forma sessions every 3 days in order to ``prevent recess
appointments,'' and Democrat leader, Harry Reid, said at the
The procedural maneuvering crafted by Senate Democrats
worked, that is until President Obama decided he can determine
what counts as legitimate business of the Congress. 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 position
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 appointment should
stand. No amount of legal manipulation can allow the president
to have it both ways.
We have witnessed this administration take extraordinary
action that stretches the limits of the office, and undermines
our all-important system of checks and balances. I realize that
in many ways the appointment process is broken. However, no
president should endorse an unconstitutional scheme in order to
address a political problem.
Not only has this action triggered a constitutional crisis,
it has denied the public an opportunity to independently judge
whether these individuals are qualified to serve. The
Republican appointee was nominated a year ago, yet Democrats in
control of the Senate refused to schedule a hearing on the
nomination. Running roughshod over the appointment process, the
president's appointees hadn't even completed the Senate's
routine background check at the time of their ``recess
Thanks to the president's action, three scarcely-known
individuals are now empowered to dramatically transform our
nation's workforce. The highly controversial nature of the
appointments guarantees the rules and decisions the new
boardmembers adopt will be constitutionally suspect and legally
Even the president's own justice department, in what I
would characterize as an understatement of the gravity of the
situation, noted the issues surrounding these appointments
``create some litigation risk.'' Make no mistake. Every action
taken by the board will be tainted, creating greater
uncertainty for employers and additional costs for taxpayers.
The president has steered the country into uncharted
waters. The question remains, why? At a time when millions of
Americans are out of work, why threaten the certainty and
confidence our economy needs to grow and prosper? Is it so
unions can have greater access to an employee's personal
information and virtually unfettered access to an employer's
property, or so workers have just 10 days to consider the
consequences of joining a union before casting their ballot?
Perhaps a decision was made to deny employers their legal
right to speak to employees during an organizing campaign.
Maybe it was to give the NLRB new opportunities to weaken
workers' right to a secret ballot. These are just some of the
items on big labor's agenda designed to strengthen its power by
weakening protections for workers and employers.
It is an agenda rejected by Congress, yet one that has made
great progress in recent years, thanks to the activism of this
labor board. The central issue before the committee today isn't
the process that led to these appointments, although that will
be part of the discussion.
Our primary concern is the fear and uncertainty this action
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. I look forward to
discussing these matters further with our witnesses.
And I will now recognize my distinguished colleague, Mr.
Miller, the senior Democratic member of the committee, for his
[The statement of Chairman Kline follows:]
Prepared Statement of Hon. John Kline, Chairman,
Committee on Education and the Workforce
Good morning and welcome to our guests. We are fortunate to have a
distinguished panel of witnesses with us today; thank you for your
In January, President Obama shocked many across the country when he
made three so-called recess appointments to the National Labor
Relations Board (NLRB)--despite the Senate not being in recess.
This unprecedented action touches upon a number of constitutional
powers. The first is the president's authority to fill vacancies
through recess appointments, a power which no one questions. The other
constitutional powers involved allow for Congress to ``determine the
Rules of its Proceedings'' and prevent one body of the legislative
branch from adjourning more than three days without the consent of the
Senate Democrats understood the value of these constitutional
principles in 2007 when they first established the practice of
convening pro forma sessions every three days in order to ``prevent
recess appointments,'' as Democrat Leader Harry Reid said at the time.
The procedural maneuvering crafted by Senate Democrats worked, that
is until President Obama decided he can determine what counts as
legitimate business of the Congress. 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.
We've witnessed this president take extraordinary action that
stretches the limits of his office and undermines our all-important
system of checks and balances. I realize that in many ways the
appointment process is broken. However, no president should endorse an
unconstitutional scheme in order to address a political problem.
Not only has this action triggered a constitutional crisis; it has
denied the public an opportunity to independently judge whether these
individuals are qualified to serve.
The Republican appointee was nominated a year ago, yet Democrats in
control of the Senate refused to schedule a hearing on the nomination.
Running roughshod over the appointment process, the president's
Democrat appointees hadn't even completed the Senate's routine
background check at the time of their ``recess'' appointments.
Thanks to the president's action, three scarcely known individuals
are now empowered to dramatically transform our nation's workforce. The
highly controversial nature of the appointments guarantees the rules
and decisions the new board members adopt will be constitutionally
suspect and legally challenged. Even the president's own Justice
Department, in what I would characterize as an understatement of the
gravity of the situation, noted the issues surrounding these
appointments ``create some litigation risk.''
Make no mistake, every action taken by the board will be tainted,
creating greater uncertainty for employers and additional costs for
The president has steered the country into uncharted waters. The
question remains: Why? At a time when millions of Americans are out of
work, why threaten the certainty and confidence our economy needs to
grow and prosper?
Is it so unions can have even greater access to an employee's
personal information and virtually unfettered access to an employer's
Or so workers have just 10 days to consider the consequences of
joining a union before casting their ballot?
Perhaps the decision was made to deny employers their legal right
to speak to employees during an organizing campaign?
Maybe it was to give the NLRB new opportunities to weaken workers'
right to a secret ballot.
These are just some of the items on Big Labor's agenda designed to
strengthen its power by weakening protections for workers and
employers. It is an agenda rejected by Congress, yet one that has made
great progress in recent years thanks to the activism of the Obama
labor board. The president has provided his union allies a critical
lifeline to wreak further havoc on America's workplaces.
The central issue before the committee today isn't the process that
led to these appointments, although that will be part of the
discussion. Our primary concern is the fear and uncertainty this action
has unleashed--the fear of the activist NLRB's future actions and the
uncertainty of whether its mandates and decisions can stand under
I look forward to discussing these matters further with our
witnesses. I will now recognize my distinguished colleague George
Miller, the senior Democratic member of the committee, for his opening
Mr. Miller. Thank you, Mr. Chairman. And good morning, and
welcome to our witnesses this morning.
Last week, this committee held the rare hearing on creating
job opportunities for the American people. The first panel
consisted of two governors, one Democrat and one Republican.
Despite party and regional differences, the governors delivered
a positive message about cooperation and economic progress in
their respective states.
They both unequivocally rejected the path of divisive
politics. When it comes to seeking solutions to stronger,
faster economic recovery, they did not recommend inaction.
Instead, they both made a compelling case that past efforts
here in Washington like the Recovery Act and the auto rescue
saved this country from an even deeper crisis.
Michigan's Republican governor specifically highlighted
legislation authored by Congressman Frank to help provide
capital to small businesses. Governor Snyder said that in
Michigan one piece of legislation allowed the state to use $30
million in public funds to leverage nearly $86 million in
private capital for small businesses.
Those loan enhancements were spread across these programs
and, together, they supported the creation of nearly 1,000 new
jobs. In addition, despite calls of some to let the domestic
auto industry fail, both governors agreed the federal rescue of
the American auto industry was essential. Governor Snyder noted
that inaction would have brought down the entire industry.
Because of the federal government's role in the American
automobile--because of the federal government's role, the
American auto industry is back on top of its game and creating
thousands of jobs. The message to Congress is to work together,
put aside divisive issues.
Our nation's future economic growth is dependent upon
productive partnerships and shared responsibility between
federal, state, and local governments and the private sector.
And I couldn't agree more with the governors. Last week's
hearing showed us what real opportunities there can be to work
together to rebuild our economy and reignite the American
This committee should be exploring ways we can assist
governors to assist their states' infrastructure to modernize
and repair our nation's schools. Targeting resources to fix
crumbling schools not only helps student learning, but saves
struggling small contractors from bankruptcy and creates
private sector construction jobs.
We could be exploring ways we could work together to
modernize our nation's job training programs to find bipartisan
solutions to ESEA reauthorization. We could be helping local
governments save jobs for teachers, police and firefighters. We
could be exploring ways to help small businesses with the two
most important challenges--getting access to credit, and
creating more customer demand.
But that is not what this hearing is about. Today is just
another legislative day to get dedicated to divisive issues. It
is not about working together to find solutions to real
problems. Today, the president's efforts to keep a vital
governmental agency fully functioning will surely be
criticized, the rights of workers will be attacked, labor
unions will be attacked.
The agency's efforts to enforce the law or modernize the
law will be intact. By now, we all know the drill, and so does
the very frustrated American public. So instead of working
together to find solutions to real problems, we will proceed
with the majority's sixth hearing on the National Labor
I yield back my time.
[The statement of Mr. Miller follows:]
Prepared Statement of Hon. George Miller, Senior Democratic Member,
Committee on Education and the Workforce
Good morning, Mr. Chairman.
Last week, this committee held a rare hearing on creating job
opportunities for the American people.
The first panel consisted of two governors: One Democrat and one
Republican. Despite party and regional differences, the governors
delivered a positive message about cooperation and economic progress in
their respective states.
They both unequivocally rejected the path of divisive politics.
When it comes to seeking solutions for a stronger, faster economic
recovery, they did not recommend inaction.
Instead, they both made a compelling case that past efforts here in
Washington, like the Recovery Act and the auto rescue, saved this
country from an even deeper crisis.
Michigan's Republican governor specifically highlighted legislation
authored by Congressman Frank that helps to provide capital to small
Governor Snyder said that in Michigan, this one piece of
legislation allowed the state to use $30 million in public funds to
leverage nearly $86 million in private capital for small businesses.
These loan enhancements were spread across three programs. All
together, they supported the creation of nearly one thousand new jobs.
In addition, despite calls from some to let the domestic auto
industry fail, both governors agreed that the federal rescue of the
American auto industry was essential. Governor Snyder noted that
inaction would have brought down the entire industry. Because of the
federal government's role, the American auto industry is back on top of
its game and creating thousands of jobs.
Their message to Congress was ``work together.'' Put aside divisive
Our nation's future economic growth is dependent on productive
partnerships and shared responsibility between federal, state, and
local governments and the private sector.
I couldn't agree more.
Last week's hearing showed us that there are real opportunities
where we can work together to rebuild our economy and reignite the
This committee should be exploring ways we can assist governors to
improve their states' infrastructure and to modernize and repair our
nation's schools. Targeting resources to fix crumbling schools not only
helps student learning, but also saves struggling small contractors
from bankruptcy and creates private-sector construction jobs.
We could be exploring ways we can work together to modernize our
nation's job-training programs or find a bipartisan solution to ESEA
We could be helping local governments save the jobs of teachers,
police, and firefighters.
We could be exploring ways to help small businesses with their two
most important challenges: getting access to credit and creating more
But that's not what this hearing is about.
Today is just another legislative day dedicated to divisive issues.
It's not about working together to find solutions to real problems.
Today, the President's efforts to keep a vital government agency
fully functional will surely be criticized. The rights of workers will
be attacked. Labor unions will be attacked. An agency's efforts to
enforce the law or modernize the law will be attacked.
By now, we all know the drill. And so does a very frustrated
So, instead of working together to find solutions to real problems,
let's proceed with the majority's sixth hearing on the National Labor
I yield back.
Chairman Kline. I thank the gentleman.
Pursuant to committee rule 7-C, all committee members will
be permitted to submit written statements to be included in the
permanent hearing record. And so objection, the hearing record
will remain open for 14 days to allow statements, questions for
the record and other extraneous material referenced during the
hearing to be submitted in the official hearing record.
As we turn to introducing our distinguished panel of
witnesses, I will now recognize Mrs. Roby of Alabama to
introduce our first witness. Mrs. Roby?
Mrs. Roby. Thank you, Chairman Kline. It is my honor and
privilege to introduce our first witness today, Mr. Charles
Cooper, who is a fellow Alabamian with an impressive resume.
Mr. Cooper is the founding member and current chairman of
litigation for the firm Cooper & Kirk.
He previously clerked for Judge Paul Roney at the U.S.
Fifth Circuit, now the 11th Circuit of Appeals, and to the
Supreme Court justice, William Rehnquist--chief justice. In
1985, President Ronald Reagan appointed Mr. Cooper to the
position of assistant attorney general for the Office of Legal
Shortly after, Mr. Cooper reentered private practice,
concentrating on constitutional, commercial and civil rights
litigation, and has been named one of the 10 best civil
litigators in Washington by the National Law Journal. Mr.
Cooper received both his B.S. and his J.D. from the University
of Alabama. And on this committee, I would be remiss not to say
``Roll, Tide, Roll.''
Thank you for being with us today, Mr. Cooper, and my
colleagues and I look forward to hearing your testimony.
Chairman Kline. I thank the gentlelady. I think we should
consider, as a committee, that everybody just comes in wearing
their school colors and we just get past this.
It is my pleasure to resume introducing our panel of
witnesses. Dennis M. Devaney is a member of Devaney Jacob
Wilson, PLLC. Mr. Devaney was a Democrat National Labor
Relations Board member from November 1988 until December 1994.
He was also commissioner of the U.S. International Trade
His labor and employment practice focuses on traditional
labor law, including representation of clients with respect to
matters arising under the National Labor Relations Act. He
received his B.A. and M.A. from the University of Maryland and
J.D. from Georgetown University Law Center.
Susan Davis is a partner at Cohen, Weiss and Simon, LLP.
Ms. Davis specializes in the representation of national and
local unions in all aspects of collective bargaining,
organizing and strategic planning. Ms. Davis also serves on the
AFL-CIO lawyers advisory panel. Before entering the private
sector, Ms. Davis clerked for the U.S. District Court in
southern New York, under the Honorable Constance Baker Motley.
She graduated with her B.A. at the University of California at
Berkeley, and received her J.D. from Rutgers University.
Stefan Marculewicz is a shareholder with Littler Mendelson,
PC. He represents multinational and domestic corporations on
issues involving international labor standards and labor
management relations domestically. Prior to entering private
practice he was a trial attorney for the National Labor
Relations Board in its Baltimore and Fort Worth regional
offices. Baltimore and Fort Worth. He received his B.A. from
Lawrence University of Wisconsin, and J.D. from Catholic
Welcome, all of you. A distinguished panel, indeed. Before
I recognize each of you to provide your testimony, let me again
briefly explain our lighting system. You will each have 5
minutes to present your testimony. When you begin, the light in
front of you will turn green. When 1 minute is left, the light
will turn yellow.
And when your time has expired the like will turn red. At
that point, please try to wrap up your testimony. I won't be
grabbing the gavel and smashing it down during your closing
sentence or something, but please try to wrap it up. Your
entire testimony will be included in the record. All right, I
think we are ready to go.
We will start with Mr. Cooper. Sir, you are recognized for
STATEMENT OF CHARLES J. COOPER, FOUNDER AND CHAIRMAN, COOPER &
Mr. Cooper. Thank you very much, Mr. Chairman, and good
morning. And good morning, Mr. Miller, and members of the
committee. I appreciate very much the opportunity to be before
you today to testify about these important questions, and I am
especially grateful to the congresswoman from the second
district of Alabama for that warm introduction.
I have been asked to testify concerning the
constitutionality of President Obama's January 4 recess
appointments of three new members to the NLRB, and of Richard
Cordray to be the first director of the Consumer Financial
Protection Bureau. The issue that is at the heart of this
committee's constitutional inquiry is whether the Senate was
continuously in recess from December 17 to January 23rd last.
The administration, in an opinion by the Office of Legal
Counsel, takes the position that it was, despite the fact that
the Senate repeatedly gaveled itself into pro forma sessions
and, in one of those sessions, actually passed legislation. In
my view, the Senate was not in continuous recess, and the
January 4 recess appointments therefore exceeded the
president's constitutional authority under the recess
OLC's legal argument rests entirely on the conclusion that
the Senate is not in session at all during its pro forma
sessions. For OLC, the Senate's pro forma sessions are a
constitutional nullity, at least for purposes of the recess
appointments clause. I believe that this view is unsustainable
for three principle reasons.
The first, and threshold, reason that the Senate's pro
forma sessions interrupted its holiday adjournment is that the
Senate says so. The Constitution's rulemaking clause vests in
each house of Congress the power to ``determine the rules of
its proceedings.'' And rules governing how and when the Senate
meets, like when this body meets, and adjourns are
quintessential rules of proceedings.
Because the rulemaking clause commits to the Senate
judgments about the meaning of its own rules, the Senate's
determination that it was repeatedly in session between
December 17 and January 23 should end the matter. Second, even
if the rulemaking clause did not give the Senate unilateral
authority to decide when, and how, to recess, there is a firmly
established practice of using pro forma sessions to satisfy the
requirements of other constitutional provisions.
Since at least 1949, the Senate has repeatedly held pro
forma sessions to comply with Article One, Section Five's
requirement that it not adjourn for more than 3 days without
the consent of this body. Congress has also used pro forma
sessions to satisfy the 20th Amendment's requirement that it
meet at noon on January 3rd to start a new session every year,
unless a different time is specified by statute.
And it is very difficult to see how the Senate can be in
session for purposes of one constitutional provision while in
recess for purposes of another. OLC rejects these argument and,
instead, relies on what it says is the purpose of the recess
appointments clause, in its words, ``to provide a method of
appointment when the Senate is unavailable to provide advice
And throughout its opinion, OLC refers to this purpose
about whether the Senate is available, and capable of providing
its advice and consent responsibilities. And it bases this
advice, again, on its view that the Senate was unavailable
throughout the holiday adjournment because the days in which
the Senate held a pro forma session were constitutionally
indistinguishable from the days in which the Senate chamber was
dark and empty.
But this assertion collapses, I would submit, under the
weight of a single inconvenient truth. While holding a pro
forma session on December 23, the Senate passed a bill, a two-
month extension of the payroll tax cut, with the president
promptly signed into law. In passing the payroll tax cut
extension, the Senate acted by unanimous consent, the very same
procedure by which the Senate confirms most presidential
If the Senate can pass legislation by unanimous consent
during a pro forma session, then it can surely confirm
presidents' nominees in the same manner. The OLC opinion
answers this point that even if, in fact, the Senate is able to
act during its pro forma sessions, the president, in OLC's
words, ``may properly rely on the public pronouncements of the
Senate that it will not conduct business.''
And there are several problems with this argument, and I
will mention just two, in light of the time, Mr. Chairman.
First, given the Senate actually passed a law during its pro
forma session, on December 23rd prior to the January 4 recess
appointments, the president plainly was not entitled to rely on
the Senate's repudiated public pronouncement that no business
would be conducted at such sessions.
Secondly, President Obama, in fact, has not relied on the
Senate's no-business pronouncement. It was he who urged the
Senate to pass the two-month extension of the payroll tax cut
during the holiday adjournment, and he who then promptly signed
the bill into with. The president surely isn't entitled both to
rely on the Senate's no-business public pronouncement and to
ignore it as it pleases him.
In short, Mr. Chairman and members of the committee, the
president's January 4 recess appointments really had nothing to
do with whether the Senate was available to act, and everything
to do with the Senate's unwillingness to confirm the
president's nominees. And as with every branch of our
government, there is hydraulic pressure within the executive
branch to exceed the outer limits of its own power.
But regardless of whether the president has sought to
exceed his power in this instance for good or ill, it is
Congress' constitutional responsibility to resist it.
Thank you again, Mr. Chairman, for inviting me to be here
[The statement of Mr. Cooper follows:]
Prepared Statement of Charles J. Cooper, Partner, Cooper & Kirk, PLLC
Good morning Mr. Chairman and Members of the Committee. My name is
Charles J. Cooper, and I am a partner in the Washington, D.C., law firm
of Cooper & Kirk, PLLC. I appreciate the Committee's invitation to
present my views on the constitutionality of the President's January 4
recess appointments to the National Labor Relations Board and the
Consumer Financial Protection Bureau. For reasons I will explain below,
I believe that the President exceeded his constitutional authority by
making these appointments during a three-day adjournment between pro
forma Senate sessions. But first I would like to outline the
professional experience that informs my thinking on this important
I have spent the bulk of my career, both as a government lawyer and
in private practice, litigating or otherwise studying a broad range of
constitutional issues. From 1985 to 1988, I served as the Assistant
Attorney General of the Office of Legal Counsel of the Department of
Justice, where I advised President Reagan and Attorney General Meese on
numerous separation of powers and other constitutional issues. Perhaps
most notable for present purposes, in early 1988 the President asked
the Justice Department for its opinion as to whether the Constitution
vests the President with an inherent power to exercise a line-item
veto. After exhaustive study, the Office of Legal Counsel (``OLC'')
concluded that the proposition was not well-founded and that the
President could not conscientiously attempt to exercise such a power.
OLC's opinion is publicly available at 12 Op. O.L.C. 128 (1988).
Since leaving government service in 1988, I have been involved in a
number of significant separation of powers cases in both the Supreme
Court and the lower federal courts. E.g., Raines v. Byrd, 521 U.S. 811
(1997) (holding that individual congressmen lack standing to challenge
Line Item Veto Act); Clinton v. New York, 524 U.S. 417 (1998) (holding
that Line Item Veto Act violates Presentment Clause); FEC v. NRA, 513
U.S. 88 (1994) (dismissing case as improvidently granted because FEC
lacked statutory authority to file cert petition); FEC v. NRA, 6 F.3d
821 (D.C. Cir. 1993) (holding that congressional appointment of ex
officio FEC commissioners violates the Appointments Clause); Olympic
Fed. Sav. & Loan Ass'n v. Director, Office of Thrift Supervision, 732
F. Supp. 1183 (D.D.C. 1990) (enjoining operations of the Office of
Thrift Supervision because Directors' appointments were not authorized
by Appointments Clause or Vacancies Act). Together, these experiences
have made me a student of the system of checks and balances implicated
by the recess appointments that are the subject of this hearing.
Between December 17, 2011, and January 23, 2012, the Senate held a
series of so-called ``pro forma'' sessions designed to break the
holiday period into three-day adjournments in order to comply with its
constitutional obligation not to adjourn for more than three days
during a congressional session without the consent of the House of
Representatives. U.S. CONST. Art. I, Sec. 5, cl. 4. The order that
scheduled these pro forma sessions was entered by unanimous consent and
provided that there was to be ``no business conducted.'' 157 Cong. Rec.
S8783 (daily ed. Dec. 17, 2011). At one of its pro forma sessions,
however, the Senate passed by unanimous consent a two-month extension
of the payroll tax cut, as requested by President Obama. Id. at S8789
(daily ed. Dec. 23, 2011). And on January 3, 2012, the Senate met in
pro forma session to comply with the Twentieth Amendment's requirement
that Congress meet on that date ``in every year * * * unless they shall
by law appoint a different date.'' The following day, on January 4, the
President made four recess appointments, filling three vacant seats on
the National Labor Relations Board (``NLRB'') and appointing Richard
Cordray to be the first Director of the Consumer Financial Protection
Bureau (``CFPB''). The NLRB recess appointments are of great
significance because without them the Board would have only two
members, and thus would lack the quorum needed to take action. See New
Process Steel, L.P. v. NLRB, 130 S. Ct. 2635 (2010). Two days after
announcing the appointments, on January 6, the Administration released
an OLC opinion that explains the legal rationale for the President's
actions. Before addressing the merits of OLC's analysis, some
background on the constitutional provisions at issue may be useful.
The Appointments Clause gives the President power ``by and with the
Advice and Consent of the Senate'' to ``appoint * * * Officers of the
United States.'' U.S. CONST. Art. II, Sec. 2, cl. 2. This ``general
mode of appointing officers of the United States'' is ``confined to the
President and Senate jointly,'' THE FEDERALIST NO. 67 (Alexander
Hamilton), and it has always been the method by which the vast majority
of officers receive their commissions. As a ``supplement'' to this
usual procedure, id., the Recess Appointments Clause authorizes the
President to ``fill up all Vacancies that may happen during the Recess
of the Senate, by granting Commissions which shall expire at the End of
their next Session,'' U.S. CONST. Art. II, Sec. 2, cl. 3. The Framers
gave the President this ``auxiliary'' power because ``it would have
been improper to oblige [the Senate] to be continually in session for
the appointment of officers,'' and yet ``vacancies might happen in
their recess, which it might be necessary for the public service to
fill without delay.'' THE FEDERALIST NO. 67.
Because the Recess Appointments Clause permits the President, under
the specified circumstances, to bypass the Senate and make appointments
unilaterally, it has been a rich source of conflict between Presidents
and Congresses since the early days of the Republic. The earliest
disputes concerned the questions whether a recently created office,
which has never before been occupied, creates a ``vacancy'' and whether
a vacancy that occurs when the Senate is in session ``happen[s] during
the recess of the Senate.'' See, e.g., Letter from Alexander Hamilton
to James McHenry (May 3, 1799), in 23 THE PAPERS OF ALEXANDER HAMILTON
94 (Harold C. Syrett ed., 1976); Edmund Randolph, Opinion on Recess
Appointments (July 7, 1792), in 24 THE PAPERS OF THOMAS JEFFERSON, at
165-67 (John Catanzariti et al. ed., 1990); 4 LETTERS AND OTHER
WRITINGS OF JAMES MADISON 350-53 (R. Worthington ed., 1884); 26 Annals
of Cong. 652-58, 694-722, 742-60 (1814); DAVID P. CURRIE, THE
CONSTITUTION IN CONGRESS: THE JEFFERSONIANS, 1801-1829, at 188-89
(2001). Although there is substantial textual and historical support
for a negative answer to both of these questions, see Michael B.
Rappaport, The Original Meaning of the Recess Appointments Clause, 52
UCLA L. REV. 1487 (2005); Stephens v. Evans, 387 F.3d 1220, 1228 (11th
Cir. 2004) (Barkett, J., dissenting), in an 1823 opinion Attorney
General William Wirt embraced the broader view that the Executive
Branch has taken since.
Lengthy adjournments during sessions of Congress were rare in the
early nineteenth century, but longer so-called ``intrasession
recesses'' became more common in recent decades. With a single
exception, see Rappaport, supra at 1572, the uniform practice of
Presidents through World War I was to refrain from making recess
appointments during intrasession adjournments, and in 1901 Attorney
General Knox concluded that the President lacks constitutional
authority to do so, 23 Op. Att'y Gen. 599 (1901). But in 1921, Attorney
General Daugherty advised President Coolidge that he could break with
prior precedent and constitutionally make recess appointments any time
the Senate is unable to ``receive communications from the President or
participate as a body in making appointments.'' 33 Op. Att'y Gen. 20,
24 (1921). Although the Senate has intermittently objected to
intrasession recess appointments in the years since, see, e.g., Brief
for Senator Edward M. Kennedy as Amicus Curiae, Stephens v. Evans, 387
F.3d 1220 (11th Cir. 2004) (No. 02-16424), Attorney General Daugherty's
opinion is the basis for what has become the Executive Branch's settled
view, see, e.g., Intrasession Recess Appointments, 13 Op. O.L.C. 271,
272-73 (1989); Recess Appointments--Compensation (5 U.S.C. Sec. 5503),
3 Op. O.L.C. 314, 315-16 (1979); 41 Op. Att'y Gen. 463, 468 (1960).
Although the Supreme Court has never addressed the meaning of the
Recess Appointments Clause, a number of the Courts of Appeals have
acquiesced, in whole or in part, in the Executive's longstanding view
of this Clause. See, e.g., Stephens v. Evans, 387 F.3d 1220 (11th Cir.
2004) (en banc) (upholding intrasession recess appointment to fill
vacancy that occurred while the Senate was in session); United States
v. Woodley, 751 F.2d 1008 (9th Cir. 1985 (en banc) (upholding recess
appointment to fill vacancy that did not arise while the Senate was in
recess); United States v. Allocco, 305 F.2d 704 (2d Cir. 1962) (same).
Against this backdrop of interbranch disputes and shifting
historical practices, the controversy that brings this Committee into
session today is whether the Senate may use pro forma sessions to
prevent the President from making recess appointments. More concretely,
the question is whether the Senate was continuously in recess from
December 17 to January 23 despite repeatedly gaveling itself into
session and, in one instance, actually passing a bill. In my view, the
Senate was not in ``Recess'' during its pro forma sessions, and the
recess appointments at issue exceeded the President's constitutional
Before discussing the Administration's legal rationale for the
recent appointments, I will first frame the issue by noting two things
that OLC's opinion does not say. First, the opinion does not suggest
that the President can make recess appointments during a Senate
adjournment of only three days--the length of the adjournment between
the pro forma sessions at issue here. Instead, OLC's legal argument
rests entirely on its conclusion that the Senate is not actually in
session during its pro forma sessions, and so was in continuous recess
between December 17 and January 23. For OLC, then, the Senate's pro
forma sessions are a constitutional nullity, at least for purposes of
the Recess Appointments Clause.
The Administration's reluctance to argue that the President can
make recess appointments during a three-day Senate adjournment is
hardly surprising given the overwhelming weight of authority that
suggests otherwise. Even Attorney General Daugherty, whose 1921 opinion
extended the President's recess appointment power to intrasession
adjournments, acknowledged that ``an adjournment of 5 or even 10 days
[could not] be said to constitute the recess intended by the
Constitution.'' 33 Op. Att'y Gen. at 25. Since then, lawyers serving in
numerous Administrations have advised Presidents to wait for a recess
of some significant duration before making recess appointments. See,
e.g., Memorandum for Alberto R. Gonzales, Counsel to the President,
from Jack L. Goldsmith III, Assistant Attorney General, Office of Legal
Counsel, Re: Recess Appointments in the Current Recess of the Senate at
3 (Feb. 20, 2004); The Pocket Veto: Historical Practice and Judicial
Precedent, 6 Op. O.L.C. 134, 149 (1982) (observing that OLC ``has
generally advised that the President not make recess appointments, if
possible, when the break in continuity of the Senate is very brief'');
Recess Appointments--Compensation (5 U.S.C. Sec. 5503), 3 Op. O.L.C.
314, 315-16 (1979) (describing informal advice against making recess
appointments during a six-day intrasession recess in 1970). Indeed, the
Department of Justice recently reached the same conclusion. See Letter
to William K. Suter, Clerk, Supreme Court of the United States, from
Elena Kagan, Solicitor General, Office of the Solicitor General at 3
(April 26, 2010), New Process Steel, L.P. v. NLRB, 130 S. Ct. 2635
(2010) (No. 08-1457). And recent Presidents have accepted their
lawyers' advice: from the start of the Reagan Administration until last
month, the shortest recess during which a President made a recess
appointment was 10 days. See Henry B. Hogue, Congressional Research
Service, Recess Appointments: Frequently Asked Questions 10 (Jan. 9,
If, as I believe, the Administration is wrong when it claims that
pro forma Senate sessions are a legal nullity, then the President's
appointments are contrary to both the weight of legal authority and
historical practice. Indeed, as far as I am aware, the present case
would stand alone as the shortest intrasession recess during which any
President has ever made a recess appointment. Presidents have made
recess appointments during intersession recesses of less than three
days on only two occasions, Hogue, supra, at 10, and in at least one of
these cases the Senate vigorously protested, see S. Rep. No. 4389, 58th
Cong., 3d Sess., reprinted in 39 Cong. Rec. 3823, 3824 (1905).
Second, the OLC opinion does not suggest that the Senate cannot
constitutionally block recess appointments by remaining in session. To
the contrary, OLC expressly acknowledges that ``[t]he Senate could
remove the basis for the President's exercise of his recess appointment
authority by remaining continuously in session.'' 2012 OLC Op. at 1.
The only question, then, is whether the Senate's acknowledged power to
thwart the President's recess appointment power was properly exercised
through its use of pro forma sessions.
A threshold reason to conclude that the Senate's pro forma sessions
interrupted its holiday adjournnment is that the Senate says so. The
Constitution vests in each House of Congress the power to ``determine
the Rules of its Proceedings,'' U.S. CONST. Article I, Sec. 5, cl. 4,
and rules governing how and when the Senate meets and adjourns are
quintessential rules of proceedings. Because the Rulemaking Clause
commits to the Senate judgments about the meaning of its own rules, the
Senate's determination that it was repeatedly in session between
December 17 and January 23 should end the matter.
The Framers understood that the Houses of Congress must have
authority to make their own rules to function as a coequal branch of
government. See Thomas Jefferson, Constitutionality of Residence Bill
of 1790 (July 15, 1790), reprinted in 2 THE FOUNDERS' CONSTITUTION,
Document 14 (``Each house of Congress possesses this natural right of
governing itself, and consequently of fixing its own times and places
of meeting, so far as it has not been abridged by * * * the
Constitution.''). As Joseph Story explained in his authoritative
constitutional treatise, ``[t]he humblest assembly of men is understood
to possess this power; and it would be absurd to deprive the councils
of the nation of a like authority.'' \1\ JOSEPH STORY, COMMENTARIES ON
THE CONSTITUTION Sec. 835 (1833).
\1\ See also, e.g., 2012 OLC Op. at 14 (``[B]rief pro forma
sessions of this sort, at which the Senate is not capable of acting on
nominations, may properly be viewed as insufficient to terminate an
ongoing recess for purposes of the Clause.''); id. at 15 (``[W]e
believe the critical inquiry is the ``practical' one identified above--
to wit, whether the Senate is available to perform its advise and
When Congress makes rules that govern its proceedings, the
President should, like the courts, defer to the legislative branch. See
Mester Mfg. v. INS, 879 F.2d at 571 (9th Cir. 1989) (``The Constitution
* * * requires extreme deference to accompany any judicial inquiry into
the internal governance of Congress.''). Courts honor Congress' rules
under the enrolled bill rule by treating the attestations of the two
houses as ``conclusive evidence that a bill was passed by Congress,''
even in the face of evidence that demonstrates otherwise. Pub. Citizen
v. District of Columbia, 486 F.3d 1342 (D.C. Cir. 2007); see also One
SimpleLoan v. U.S. Secretary of Educ., 496 F.3d 197 (2d Cir. 2007).
This doctrine reflects ``the respect due to a coordinate branch of
government,'' Marshall Field & Co. v. Clark, 143 U.S. 649, 673 (1892),
and underscores the very limited inquiry courts make where the
Congress' rules of proceedings are at issue. For similar reasons, the
D.C. Circuit has held that the meaning of ambiguous congressional rules
is nonjusticiable; were it otherwise, ``the court would effectively be
making the Rules--a power that the Rulemaking Clause reserves to each
House alone.'' United States v. Rostenkowski, 59 F.3d 1291, 1306-07
(D.C. Cir. 1995). And although the OLC opinion is surely correct when
it says that Congress `` `May not by its rules ignore constitutional
restraints or violate fundamental rights,' '' 2012 OLC Op. at 20
(quoting United States v. Ballin, 144 U.S. 1, 5 (1892)), the Supreme
Court has made clear that ``within these limitations all matters of
method are open to the [Senate's] determination,'' Ballin, 144 U.S. at
The present case underscores the Framers' wisdom in giving each
House of Congress exclusive authority to make its own rules. Here the
President purports to tell the Senate what it must do to bring itself
into session and retroactively declares a series of Senate sessions to
be a constitutional nullity. The Rulemaking Clause does not permit such
executive interference in the Senate's internal procedures any more
than it would permit similar interference by the courts. Cf. Nixon v.
United States, 506 U.S. 224 (1993). To hold otherwise would threaten
Congress's ability to function as an independent branch of government,
undermining the checks and balances that the Framers ``built into the
tripartite Federal Government as a self-executing safeguard against the
encroachment or aggrandizement of one branch at the expense of the
other.'' Buckley v. Valeo, 424 U.S. 1, 122 (1976) (per curiam).
It is no answer to say that the Senate could use its rulemaking
authority to prevent the President from making recess appointments ``by
declaring itself in session when, in practice, it is not available to
provide advice and consent.'' 2012 OLC Op. at 20. As discussed in
detail below, the Senate has not done this, for it is available to
provide advice and consent during its pro forma sessions. In any event,
the Constitution empowers the Senate to block recess appointments by
refusing to recess, and the validity of the President's January 4
appointments depends on his judgment that the Senate unsuccessfully
attempted to exercise this power. As Alexander Hamilton explained in
Federalist 76, the Framers denied the President ``the absolute power of
appointment'' because they believed the Senate would ``tend greatly to
prevent the appointment of unfit characters'' and would serve as ``an
efficacious source of stability in the administration'' of government.
The prospect of an intransigent Senate that refuses to confirm the
President's nominees is an unavoidable corollary of the Framers'
decision to ``divid[e] the power to appoint the principal federal
officers * * * between the Executive and Legislative branches.''
Freytag v. Commissioner, 501 U.S. 868, 869 (1991).
But even if the Rulemaking Clause did not give the Senate
unilateral authority to decide when and how to recess, the better view
would still be that the President cannot make recess appointments when
the Senate is in pro forma session. Although the use of pro forma
sessions to block recess appointments is a relatively new practice--
first threatened during the Reagan Administration and first used
against George W. Bush--there is a firmly established practice of using
pro forma sessions to satisfy the requirements of other constitutional
Since at least 1949, the Senate has repeatedly held pro forma
sessions to comply with Article I, Section 5's requirement that it not
adjourn for more than three days without the House's permission. See,
e.g., 95 Cong. Rec.12,586 (Aug. 31, 1949); 95 Cong. Rec. 12,600 (Sept.
3, 1949); 96 Cong. Rec. 7769 (May 26, 1950); 96 Cong. Rec. 7821 (May
29,1950); 96 Cong. Rec. 16,980 (Dec. 22,1950); 96 Cong. Rec. 17,020
(Dec. 26, 1950); 96 Cong. Rec. 17,022 (Dec. 29, 1950); 97 Cong. Rec.
2835 (Mar. 22, 1951); 97 Cong. Rec. 2898 (Mar. 26, 1951); 97 Cong. Rec.
10,956 (Aug. 31, 1951); 97 Cong. Rec. 10,956 (Sept. 4, 1951); 98 Cong.
Rec. 3998-99 (Apr. 14, 1952); 101 Cong. Rec. 4293 (Apr 4, 1955); 103
Cong. Rec. 10,913 (July 5, 1957). Congress has also used pro forma
sessions to satisfy the Twentieth Amendment's requirement that it meet
at noon on January 3 to start a new session unless a different time is
specified by statute. See H.R. Con. Res. 232, 96th Cong., 93 Stat 1438
(1979) (pro forma session to be held on January 3, 1980); H.R. Con.
Res. 260, 102d Cong., 105 Stat. 2446 (1991) (pro forma session to be
held on January 3, 1992); 151 Cong. Rec. S14,421 (daily ed. Dec. 21,
2005) (pro forma session to be held on January 3, 2006); 153 Cong. Rec.
S16,069 (daily ed. Dec. 19, 2007) (pro forma session to be held on
January 3, 2008); 157 Cong. Rec. S8783 (daily ed. Dec. 17, 2011) (pro
forma session to be held on January 3, 2012). Pro forma sessions have
long been widely accepted as a permissible method of fulfilling these
constitutional mandates, and it is difficult to see how the Senate
could be in session for purposes of one constitutional provision while
in recess for purposes of another.
Rejecting these arguments, OLC relies instead on what it says is
the purpose of the Recess Appointments Clause: ``to provide a method of
appointment when the Senate [is] unavailable to provide advice and
consent.'' 2012 OLC Op. at 15. Throughout its lengthy opinion, OLC
repeatedly emphasizes the Executive Branch's ``traditional view that
the Recess Appointments Clause is to be given a practical construction
focusing on the Senate's ability to provide advice and consent to
nominations * * * .'' Id. at 4. In concluding that a pro forma session
of the Senate is indistinguishable from a recess of the Senate, OLC
argues that ``the touchstone is [the pro forma sessions'] ``practical
effect, viz., whether or not the Senate is capable of exercising its
constitutional function of advising and consenting to executive
nominations.' '' Id. at 12 (quoting Recess Appointments, 41 Op. Att'y
Gen. at 467).\2\
\2\ Op. Att'y Gen. 631 (1823). Attorney General Wirt's opinion
reads the phrase ``may happen during the recess of the Senate'' to mean
``may happen to exist during the recess of the Senate,'' and so
concludes that the President may fill any seat that is open during a
recess regardless of when it became open or whether it has been
previously occupied. Id. at 631-32.
OLC is certainly correct that the Recess Appointments Clause was
intended to provide ``an auxiliary method of appointment,'' as Hamilton
put in Federalist No. 67, for filling ``vacancies that may happen
during the recess of the Senate,'' when the Senate is unavailable to
perform its advice and consent function. But even accepting at face
value OLC's ``practical construction'' of the Recess Appointments
Clause, the recess appointments made by the President on January 4
cannot reasonably be justified on the ground that the Senate was
unavailable or otherwise unable to perform its advice and consent
function. Rather, the Senate has simply been unwilling to provide its
advice and consent to the President's nominees.
First, not only has the Senate been ``available'' in fact to
consider these nominations, it has actually been considering some of
them for many months. The President recess appointed Terence Flynn to a
seat on the NLRB that had been vacant since August 27, 2010, when Peter
Schaumber's statutory term expired. National Labor Relations Board,
Members of the NLRB since 1935, https://www.nlrb.gov/members-nlrb-1935
(last visited Feb. 5, 2012). This vacancy thus occurred by operation of
law, not as a result of some unexpected event such as resignation or
death. Yet the President waited over four months, until January 2011,
to nominate Mr. Flynn to fill the seat. Far from being unavailable or
otherwise unable to provide its advice and consent to Mr. Flynn's
nomination, the Senate has simply been unwilling to do so, and the
nomination has been stalled for over a year. In the case of Richard
Griffin, the President waited until December 15, 2011--two days before
the Senate's adjournment for the holiday--to nominate him to a seat
that became vacant at the expiration of Wilma Liebman's statutory term
months earlier, on August 27, 2011. Id. Again, this vacancy on the NLRB
occurred by operation of law; it took no one by surprise. It is
untenable for OLC to claim that the President acted to fill these
vacancies because the Senate was not ``capable of exercising its
constitutional function of advising and consenting to executive
nominations.'' Id. at 12.
Indeed, in publicly announcing his recess appointment of Mr.
Cordray to the CFPB, 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 for this job 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 * * * .''
President Barak Obama, Remarks by the President on the Economy,
available at http://www.whitehouse.gov/the-press-office/2012/01/04/
remarks-president-economy (Jan. 4, 2012). 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
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
For OLC, however, the Senate's availability to perform its advice
and consent function is not determined by whether the Senate is in fact
available to consider a nomination, or even by whether it has in fact
been considering a nomination for many months. Rather, OLC focuses
solely on whether the Senate's availability to consider a nomination is
interrupted by a recess of sufficient duration to justify exercise of
the President's recess appointment power. And, as previously noted, it
has opined that the Senate was unavailable throughout its holiday
adjournment--from December 17 to January 23--because the days in which
the Senate held a pro forma session were constitutionally
indistinguishable from the days in which the Senate chamber was dark
But this assertion collapses under the weight of a single
inconvenient truth: while holding a pro forma session on December 23,
the Senate passed a bill--a two month extension of the payroll tax
cut--which the President promptly signed into law. 157 Cong. Rec. S8789
(daily ed. Dec. 23, 2011). This was not the first time that the Senate
had passed legislation during a pro forma session. See id. at S5297
(daily ed. Aug. 5, 2011) (passing Airport and Airway Extension Act
during pro forma session). In passing the payroll tax cut extension,
the Senate acted by unanimous consent, the same procedure by which the
Senate confirms most presidential nominees. MICHAEL L. KOEMPEL & JUDY
SCHNEIDER, CONGRESSIONAL DESKBOOK Sec. 10.80 (5th ed. 2007); see,
e.g., 157 Cong. Rec. S7874-75 (daily ed. Nov. 18, 2011); 157 Cong. Rec.
S4303 (daily ed. June 30, 2011); 156 Cong. Rec. S587 (daily ed. Feb.
11, 2010). In fact, the Senate confirmed numerous nominees by unanimous
consent the very day it agreed to hold the pro forma sessions at issue
here. 157 Cong. Rec. S8769-70 (daily ed. Dec. 17, 2011). 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. Further, Senate committees often consider presidential appointees
when the Senate is in intrasession recesses. During the intrasession
recess from January 7 to January 20, 1993, for example, Senate
committees ``considered nearly every one of President-elect Clinton's
cabinet nominations.'' Michael A. Carrier, Note, When Is the Senate in
Recess for Purposes of the Recess Appointments Clause?, 92 MICH. L.
REV. 2204, 2242 (citing 139 Cong. Rec. D46-48 (daily ed. Jan. 20,
1993)). Had some national emergency over the holiday break made the
filling of a vacant office imperative, there is no doubt that the
Senate would have been able to confirm a nominee at one of its pro
forma sessions. Nor is there any doubt that the President could have
called the Senate into session for the purpose of performing its advice
and consent function, if he determined that the national interest
required him to do so. U.S. CONST., ART. II, Sec. 3, cl. 2.
The OLC opinion answers that, even if in fact the Senate is able to
act during its pro forma sessions, the President ``may properly rely on
the public pronouncements of the Senate that it will not conduct
business.'' 2012 OLC Op. at 21. There are several problems with this
First, the Senate's scheduling order directing that no business be
conducted during pro forma sessions was entered by unanimous consent,
and there can be no doubt that the Senate was perfectly free to
overrule it, and to conduct business, by unanimous consent. Surely,
under a ``practical construction'' of the Recess Appointments Clause
``focusing on the Senate's ability to provide advice and consent to
nominations,'' 2012 OLC Op. at 4, the indisputable practical reality
that the Senate is able to provide advice and consent to nominations
during a pro forma session trumps a non-binding public pronouncement to
the contrary. Second, given that the Senate passed a law during its pro
forma session on December 23, prior to the January 4 recess
appointments, the President plainly was not entitled to rely on the
Senate's repudiated public pronouncement that no business would be
conducted at such sessions. If a Senate recess is defined as any period
during which the Senate is not available to conduct business, then
surely the Senate cannot be in recess when it passes legislation.
Finally, President Obama in fact has not relied on the Senate's no-
business pronouncement. It was he who urged the Senate to pass the two-
month extension of the payroll tax cut during the holiday adjournment,
and who promptly signed the bill into law notwithstanding that it was
passed by the Senate in plain violation of the order scheduling the
December 23 pro forma session. The President surely is not entitled
both to rely on the Senate's public pronouncement that it will not
conduct business and to ignore it, as he pleases.
Rather than furthering the purpose of the President's recess
appointment power, the OLC opinion would allow that power to swallow
the Senate's authority to withhold its consent when it believes a
nominee should not be confirmed. In this way, the Administration's
legal position is a vivid illustration of what Justice Cardozo called
``the tendency of a principle to expand itself to the limit of its
logic.'' BENJAMIN N. CARDOZO, NATURE OF THE JUDICIAL PROCESS 51 (1921).
The Framers intended the President's recess appointment power to serve
as an ``auxiliary method'' that would ``supplement'' the usual
requirement that the President and the Senate act ``jointly'' in making
appointments. THE FEDERALIST NO. 67 (Alexander Hamilton). Yet under the
Administration's approach, a President could circumvent the Senate's
opposition to a nominee by making seriatim recess appointments to the
same office. That is precisely what the President has done in the case
of his recess appointment to the NLRB of Sharon Block, where he
replaced one recess appointee with another.
The President's January 4 recess appointments had nothing to do
with whether the Senate was available to act and everything to do with
the Senate's unwillingness to confirm the President's nominees. As with
every branch of our government, there is a ``hydraulic pressure''
within the Executive ``to exceed the outer limits of its power.'' INS
v. Chadha, 462 U.S. 919, 951 (1983). Regardless of whether the
President has sought to exceed his power for good or ill, it is
Congress' constitutional responsibility to resist him.
Chairman Kline. Thank you, sir.
Mr. Devaney, you are recognized for 5 minutes.
STATEMENT OF DENNIS M. DEVANEY, MEMBER,
DEVANEY JACOB WILSON, PLLC
Mr. Devaney. Thank you, Mr. Chairman, Ranking Member
Miller, members of the committee. It is a privilege for me to
be here this morning to comment on the public policy
implications for the NLRB of President Obama's January 4th so-
called ``recess appointment'' of three members.
As you all know, those three members actually are a quorum
of the board since the 1947 Taft-Hartley Act amendments. And I
think it is particularly significant in the wake of the Supreme
Court's decision, in New Process Steel, that the majority of
the board is now purportedly appointed via this recess
As I said in the Washington Times interview that I gave, my
problem with it is I think it is going to put a cloud over
every action that this board takes. And the object lesson and
relevant precedent that underscores this unfortunate public
policy consequence for the board, employees, unions and
employers is best illustrated by what happened to the board in
December of 2007.
As many of you will remember, finding itself with only four
members and expecting two more vacancies when the recess
appointments of two members expired at the adjournment of the
first session of the 110 Congress, the four boardmembers
purportedly delegated all of the board's powers to the
remaining two members.
And they did this at a time, and in the face of, the clear
language in the statute since 1947, which says that three
members of the board shall at all times constitute quorum of
the board. On behalf of one of my clients, I appealed an
adverse two-member decision to the U.S. Court of Appeals for
the District of Columbia Circuit and then, on the client's
behalf, participated as amicus curiae on the winning side in
the U.S. Supreme Court New Process Steel case.
And I note for the record that Justice Stevens, in one of
his last opinions, writing for the majority, said, ``If
Congress wishes to allow the board to decide cases with only
two members, it can easily do so. But until it does, Congress'
decision to require that the board's full power be delegated to
more fewer than three members, and to provide for a board
quorum of three, must be given practical effect.''
Section 3-B, as it currently exists, does not authorize the
board to create a tail that would not only wag the dog, but
would continue to wag the dog after the dog died.
The lesson with respect to the president's recess
appointments the day after the U.S. Senate met in pro forma
session on Tuesday, January 3rd to commence the second session
of this Congress, and was scheduled to meet in another pro
forma session on Friday, can be found in the background Office
of Legal Counsel memorandum which was done in 2003 that said to
the board that it could, indeed, delegate all of its powers to
a three-member board which then could decide, too.
OLC was wrong then, and the Supreme Court said they were
wrong. OLC is going to be wrong now, and I believe that that
will be the final result if litigation comes forward. The
problem for the parties and for the board, for employees, and
for employers is that it is likely that that issue cannot be
raised until there is an adverse decision by this NLRB, appeal
to a circuit court, and then perhaps reviewed by the Supreme
Court of the United States.
At a minimum, we are looking at 2 to 3 years of litigation.
As I said in the brief I wrote in New Process Steel, the
questions of the board's delegation and quorum requirements is
an institutional and legal process issue, not an employee, not
a union, not a management question.
I think many of you know I primarily represent management
in my private practice. But I want you to know that in the New
Process Steel case the amicus curiae brief that I filed was on
behalf of the Michigan Region Council of Carpenters.
So this is not a union or management issue. This is a
process issue. And it is just bad public policy for the
president to have taken this action. I also want to note
particularly the sort of dance that the Office of Legal Council
has done. I was present at the oral argument in New Process
Steel, and Deputy Solicitor General Katyal argued for the
government, a very effective advocate.
But Chief Justice Roberts, on March 23rd--and this is
before President Obama recess-appointed Member Becker and
Member Pearce asked him, ``Well, why doesn't the president just
use the recess appointment authority?'' Katyal's answer was,
``Well, yes, the recess appointment authority would be
available, but in my office it is opined that there has to be a
minimum recess of 3 days.''
Now, not a year-and-a-half later--and frankly,
unfortunately, I think for political expediency reasons--OLC
now has changed their mind. I notice my time is up. Let me just
briefly close, Mr. Chairman.
For the parties who use the board' processes, and for
reasoned development of national labor policy, the uncertainty
that is going to be created by questions about the legality and
the authority of these appointments will further contribute to
doubts about the agency and it's mission.
For many years, the board, by tradition, has decided that
cases which of major significance or important precedent should
only be decided when there is a five-member board and with a
majority of three. Because of this cloud that is over this
board, I think that the parties and the employees and the
unions and the employers who deal with the board,
unfortunately, are going to face a very uncertain prospect for
the next several years.
And that is bad public policy. Thank you, Mr. Chairman.
[The statement of Mr. Devaney follows:]
Prepared Statement of Dennis M. Devaney, Member,
Devaney Jacob Wilson, PLLC
Mr. Chairman, Members of the Committee. It is a privilege for me to
be here this morning to comment on the public policy implications for
the National Labor Relations Board of President Obama's January 4, 2012
so-called recess appointment of three members to the NLRB (a quorum of
the Board since the 1947 enactment of the Taft Hartley Act and of its
potential legal significance in light of the U.S. Supreme Court's New
Process Steel decision). As I said in my interview with the Washington
Times that the Committee partially quoted in its release announcing
today's hearing ``My problem with it is I think there is going to be a
cloud over whatever they do * * * Anything they do is going to be
subject to being undone, because they did not have the authority to
The object lesson and relevant precedent that underscores the
unfortunate public policy consequences for the Board, employees,
unions, and employers by such brinksmanship appointment and delegation
practices is best illustrated by the Board's actions in December, 2007.
Finding itself with only four members and expecting two more vacancies
when the recess appointments of two members expired at the adjournment
of the 1st Session of the 110th Congress, the four Board members,
delegated all of the Board's powers to the remaining two members in the
face of the statute's clear language, since 1947, that ``[T]hree
members of the Board shall, at all times, constitute a quorum of the
On behalf of one of my clients, I appealed an adverse two member
decision to the U.S. Court of Appeals for the District of Columbia
Circuit and then on the client's behalf participated as amicus curiae
on the winning side at the U.S. Supreme Court in New Process Steel,
L.P. v. NLRB, where Justice Stevens writing for the Court majority said
``If Congress wishes to allow the Board to decide cases with only two
members, it can easily do so. But until it does, Congress' decision to
require that the Board's full power be delegated to no fewer than three
members, and to provide for a Board quorum of three must be given
practical effect * * * Section 3(b), as it currently exists, does not
authorize the Board to create a tail that would not only wag the dog,
but would continue to wag after the dog died.''
The lesson with respect to the President's recess appointments the
day after the U.S. Senate met in pro forma session on Tuesday, January
3, 2012 to commence the second session of the 112th Congress and was
scheduled to meet in another pro forma session on Friday, January 6,
2012 can be found in the background Office of Legal Counsel, U.S.
Department of Justice memorandum provided to the NLRB in 2003 which had
incorrectly opined that ``if the Board delegated all of its powers to a
group of three members, that group could continue to issue decisions
and orders as long as a quorum of two members remained'' which was
rejected by the Supreme Court's in New Process, in Deputy Solicitor
General Neal Katyal's answer on behalf of the Obama Justice Department
to Chief Justice Robert's question at oral argument in New Process on
March 23, 2010: CHIEF JUSTICE ROBERTS: ``And the recess appointment
power doesn't work why?'' MR. KATYAL: ``The--the recess appointment
power can work in--in a recess. I think our office has opined the
recess has to be longer than 3 days'', (see Exhibit 1) and in the
effort to distinguish the Justice Department's three day legal position
put before the Court in New Process in the January 6, 2012 Office of
Legal Counsel Memorandum Opinion for the Counsel to the President which
argues that former Solicitor General Kagan's April 26, 2010 response to
the Supreme Court's April 16, 2010 Order was addressing mootness. The
problem with that argument is that on March 23, 2010 when Chief Justice
Roberts asked his question, President Obama had not made his recess
appointments of former Member Craig Becker and of then Member and now
Chairman Mark Pearce which did not take place until March 27, 2010.
Thus, Katyal's answer was not given in the context of a question with
respect to mootness, but rather as the Obama Justice Department's
policy advice that to make a constitutionally sound recess appointment,
the recess should be of at least three days in duration. Not even two
years later, the Obama Justice Department rendered an opinion in which
they opined that ``pro forma sessions do not have the legal effect of
interrupting an intrasession recess otherwise long enough to qualify as
a `Recess of the Senate' under the Recess Appointments Clause of the
For the parties who use the Board's processes and for reasoned
development of national labor policy, uncertainty created by questions
about the legality and authority of these appointments will further
contribute to doubts about the agency and its mission. For many years,
serving members of the Board have adhered to a policy by which members
have agreed not to change major or significant precedent without the
presence of a full five member Board. For both institutional and
personal reasons, many appointees serving in recess appointments, even
when the Board has been composed of five members, have been reluctant
to take positions on controversial cases. This has frequently resulted
in additional delay in adjudication of cases and in implementation of
non-adjudicative policies by the Board. Importantly, since Board
procedures allow notational voting and provide that panel decisions are
circulated to all serving members who may opt onto the case or
designate the case as one that should be decided by the full Board, if
these recess appointments are at some point in the future held
constitutionally deficient, the Board will again be faced with redoing
or revisiting decisions. Such a development will once again undercut
confidence in the fairness and due process of Board decision making.
Parties who receive an adverse decision from the Board will have
the right to appeal those decisions. Unlike typical Board decisions,
the constitutional issue will not be subject to Chevron deference. In
the meantime, the regional staff will apply the most recent decisions
of the Board. Thus, the effect of the decisions will not be limited to
the aggrieved party. In fact, the decisions will extend to all parties
covered by the NLRA. It takes on average more than one year for the
Board to decide a case. Normally, there would be some closure once the
Board decides, but under the current scenario there will most likely be
legal issues for an extended period of time which will add costs for
the parties and taxpayers.
Should the current Board, which includes a majority of purported
recess appointees, attempt to delegate powers to the Acting General
Counsel or Regional Directors it will raise additional legal questions.
In the New Process decision the Supreme Court did not reach the issue
of potential unlawful delegations, but a Writ of Certiorari Petition
raising that direct issue is currently pending before the Supreme
Court. It is almost certain that similar challenges will be mounted
because of the cloud over the current Board as a result of the recent
appointments. See HTH Corporation, KOA Management LLC DBA Pacific Beach
Hotel and Pacific Beach Corporation v. National Labor Relations Board.
Thank you for the opportunity to provide my comments. I will be
happy to answer any questions you or the Committee members may have.
JUSTICE SCALIA: When--when--when is one of the two's term over?
MR. KATYAL: In the absence of any further confirmations or other
appointments, one of the members, Member Schaumber, will leave on
August 27th of this year.
JUSTICE SCALIA: Of this year. At which point there will be some
pressure on Congress, I guess, right?
MR. KATYAL: There will.
JUSTICE GINSBURG: There are--there are two nominees, are there not?
MR. KATYAL: There are three nominees pending right now.
JUSTICE GINSBURG: Three?
MR. KATYAL: Yes. And they have been pending. They were named in
July of last year. They were voted out of committee in October. One of
them had a hold and had to be renominated. That renomination took
place. There was a failed quorum--a failed cloture vote in February.
And so all three nominations are pending. And I think that underscores
the general contentious nature of the appointment process with respect
to this set of issues.
CHIEF JUSTICE ROBERTS: And the recess appointment power doesn't
MR. KATYAL: The--the recess appointment power can work in--in a
recess. I think our office has opined the recess has to be longer than
3 days. And--and so, it is potentially available to avert the future
crisis that--that could--that could take place with respect to the
board. If there are no other questions----
CHIEF JUSTICE ROBERTS: Thank you, counsel. Mr. Richie, you have 3
rebuttal argument of sheldon e. richie on behalf of the petitioner
MR. RICHIE: First, let me address the the issue of what happens if
we prevail, how will the problem be fixed. There are two types of
cases. There are representation cases, and then there are cases dealing
with unfair labor practices. The unfair labor practices, Mr. Chief
Justice, have a limitations period to them. The--the issues--the issues
with respect to representation have no limitations. So in response to
Justice Ginsburg's comment--I believe it was Justice Ginsburg--there's
a--when a successor comes on board, these issues, if these--if we
prevail and our decision is vacated, those are--can be reheard by the
board when a successor is in place. The D.C. Circuit----
JUSTICE SCALIA: Excuse me. Just the--just the representation cases,
not the unfair labor 6 practice cases?
MR. RICHIE: That's correct.
JUSTICE SCALIA: Wouldn't the----
MR. RICHIE: Well, except to the extent, Justice Scalia, that the
statute of limitations has not run on those unfair labor----
JUSTICE SCALIA: Yes, I understand.
MR. RICHIE [continuing]. Cases.
CHIEF JUSTICE ROBERTS: Wouldn't--wouldn't the statute of
limitations at least be told during the period when they can't do
anything? I suppose that's a different case.
MR. RICHIE: That's an argument. That's a different case. I don't
know the answer. And I'm sure the litigants would argue that. With
respect to the issue of the--whether it's three members that are
required on both the board and the group, the D.C. Circuit didn't deal
with that, but they did deal with the exception issue. And they said--
I'm reading from the appendix page of our * * *
Chairman Kline. Thank you, sir.
Ms. Davis, you are recognized.
STATEMENT OF SUSAN DAVIS, PARTNER,
COHEN, WEISS AND SIMON, LLP
Ms. Davis. Thank you very much, Chairman Kline, Ranking
Member Miller, members of the committee, Congresswoman Susan
Davis--we are not related to each other. It is very nice to be
here. Thank you very much for allowing me to testify about the
needs for a fully-functional National Labor Relations Board.
And I do agree with Mr. Devaney. This is more about process any
sort of partisan agenda.
I am a partner in the law firm of Cohen, Weiss and Simon in
New York City. And if I may have a hats off to the New York-New
Jersey Giants, as we start.
For the past 31 years, I have represented nurses and
airline pilots, auto workers and steel workers, musicians,
actors, truck drivers alike. I have sat at countless bargaining
tables across the aisle from employers, and we have negotiated
collective bargaining agreements, some of which have been in
effect for decades.
They have provided wages for workers to support their
families, to buy a home, for their kids to go to college, to
have decent health insurance and a decent retirement package.
In short, these collective bargaining agreements, and our
process, has allowed workers in this country to attain the
I have represented workers during the Reagan board, during
the Clinton board, during both Bush boards and during the Obama
boards. Makes me feel old. [Laughter.]
There have been decisions from the boards that I have
decried, and there have been other decisions that I have
lauded. However, one constant during this period has remained.
Through Democratic administrations, through Republican
administrations, other than for a few days at the time the
labor board has been allowed to function.
Every year, it has addressed more than 20,000 unfair labor
practice charges of employer illegal conduct. It has awarded an
average of $93 million a year in workers to back pay. It has
conducted about 1,900 secret ballot elections every year. And,
as this committee has discussed in the past, secret ballot
elections are very important.
Under our system of labor relations, like it or not neither
the federal courts nor the states have any jurisdiction
whatsoever to administer our national laws. The NLRB is the
sole entity that can administer the rule of law in labor
relations in this country. In a very real sense, the rule of
law is a substitute for the rule of the jungle.
This is true in our economy, it is true in our society, and
it is particularly true in the often heated and agitated realm
of labor relations. A central feature of the rule of law is
that there is a place to go for decisions. Again, this is a
systematic truth, but is essentially true in the context of
labor management disputes.
Since 1935, the basic rule in this country in labor
management relations has been the National Labor Relations Act.
And the place to go for decisions, the only place to go, has
been the National Labor Relations Board. Those who want to
change that reality can try to change it, try to change the
law, try to abolish the labor board.
But as long as the NLRA and the NLRB stand, they must be
permitted to function. That is simply the way our system works.
Had President Obama not made the three recess appointments to
the board on January 3 there would have been, we all agree, a
two-person quorum-less board that would have shut down.
The Office of Legal Counsel, like the head of that same
office under President George W. Bush and like a number of
constitutional scholars, determined that the pro forma
sessions, where no business was conducted, did not constitute
constitutional sessions that were sufficient to block the
president's recess appointment power because he could not
obtain the advice and consent of the Senate in a very real
For those of us who live outside the Beltway, I must say
that the idea that you could post one person in the chamber for
a few seconds every couple days when the Senators were in their
home states, when, under Senate order, there was not ability to
conduct any business, for those of use who don't live in this
town, that it is to exalt the minutest of form over the
weightiest of substance.
The constitutional debate is fascinating. Haven't spent
this much time reading about it in many, many years. But it
obscures the real issue that is before this committee. What
will happen to workers, what will happen to our system of
collective bargaining if the labor board is shut down. I think
that is the question, with all due respect to all of us, that
you need to focus on today.
Workers who are fired--and that is one out of every four in
an organizing campaign--will have their cases investigated, but
will have no final back pay award, will have no final
reinstatement award, if there is no labor board. Workers may
file election petitions, there may even be elections. But there
will be no election order and no election finality, and thus no
requirement of collective bargain, even for those workers who
want to select a union.
Last month, in New York City, a strike of 20,000 nurses
that I represent was averted because the National Labor
Relations Board enforced the obligation of the union and of the
four major hospitals in New York City to bargain with each
other in good faith. It was painful, but we did it.
Ultimately, we reached a contract that protected the
nurses. It protected the patients. It protected the hospitals.
And it protected those of us who live and work in New York City
who will have to go to a hospital one day. The rule of law
enforced by the labor board, not the rule of the jungle that
was in effect in the 1930s, saved the day.
If the labor board is not able to function it will affect
all of us, but most of all it affect workers in this country
who have the least. They will pay the highest price. You must
measure that price not only in lost jobs and in lost back pay,
but in lost opportunities to move into the middle class. That
is the American dream.
That price the president determined, on January 3rd, in
light of the view of the Office of Legal Counsel which had been
supported by its predecessor, was simply too high.
Thank you very much. I look forward to the opportunity to
answer your questions.
[The statement of Ms. Davis follows:]
Chairman Kline. Thank you.
STATEMENT OF STEFAN J. MARCULEWICZ,
SHAREHOLDER, LITTLER MENDELSON
Mr. Marculewicz. Thank you, Chairman Kline, and Ranking
Member Miller, and members of this committee for inviting me to
testify before you on this important topic.
My testimony today is going to focus on the practical
implications of President Barack Obama's January 4th, 2012
appointments of NLRB members Richard Griffin, Sharon Block and
Terence Flynn; should those appointments be deemed invalid
because of the manner in which the president has made them. I
am not here to comment on the process followed by the president
in making those appointments or its constitutionality.
I will leave that to others who have already testified.
However, as a labor lawyer who spends much of his day advising
companies on the ins and outs of compliance with the
intricacies of the National Labor Relations Act and the
decisions of the National Labor Relations Board, I do feel I
have a certain understanding of the confusion and uncertainty
that will result from decisions of this new board, particularly
given that the quorum may ultimately be determined invalid by
That uncertainty will be seen far and wide. Moreover, I
believe it will have a particularly disparate impact on small
business, which often lacks the resources in both time and
money to pursue rights they might otherwise legitimately have.
Only a few years ago, the United States Supreme Court issued
its decision in New Process Steel. In that case, the court
concluded that Congress had not conferred authority to allow a
two-member panel to decide cases at the NLRB.
During the period of time that New Process Steel was making
its way through the courts, the two-member NLRB decided nearly
600 cases. For the most part, those cases consisted of routine
determinations by the board on which the two members--one a
Democrat, the other a Republican--could agree on applicable
law. Controversial matters were left for another day.
Once the Supreme Court issued its decision in New Process
Steel, each of those decisions was rendered invalid. Each one
had to be revisited by the board once it had a proper quorum.
Suffice it to say this created a significant amount of
uncertainty within the ranks of those whose cases had been
decided by the two-member panel.
For the period of time, that uncertainty remains. Then,
eventually, the National Labor Relations Board established a
process to revisit each of those decisions and work through the
cases. Because the cases decided by the two-member panel were
generally noncontroversial, and ones on which they could agree
on the law, the NLRB was able to revisit and resolve them
without lasting effects.
In the current situation, however, with a full complement
of five boardmembers, the NLRB is likely to rule on many
substantive points of law. Some of those points of law are
highly controversial. Not only will such decisions impact the
parties involved and the cases themselves, but because the NLRB
decisions become the law of the land they will also directly
impact other employers, labor unions and even individuals.
If President Obama's recent nominations are determined to
be invalid, the lasting effects could be substantial. Every
decision issued by this board will be accompanied by the very
real possibility that it might be sustained. Companies trying
to comply with the law will face a dilemma on whether to comply
with the decisions issued by this board or refuse to do so.
For many, waging a lengthy legal battle will prove too
costly in time, money and other resources to justify the
expenditure. Many employers will simply comply. However, if the
law created by this board is ultimately annulled by the courts
it will be very difficult to undo that process.
An overwhelming majority of NLRB cases are settled or
resolved at the regional office level. They never reach the
full NLRB. Yet regional office action is premised upon the
current state of the law as defined by the NLRB. If this
practice holds true, even in light of the current composition
of the board, then the same portion of cases are, hopefully, to
Only now they will be resolved pursuant to precedent that
is unstable. When a party resolves a matter at the regional
office level, typically that party commits to taking action in
furtherance of that resolution. That action is relied upon, and
followed by, those it affects. Such action could include the
agreement upon the scope of a bargaining unit that may exclude
It could include creation and dissemination of a new
company policy on social media or e-mail usage that affects the
entire workforce. Or it could include permitting non-union
employee access to an employer's property, whether it is the
employer's premises or its e-mail system. The reality is that
the NLRB doctrine becomes the fabric of labor relations in our
economy quickly, as employers seek to comply with the law.
If such doctrine is annulled in its entirety, as is
possible here, its effects will be difficult and costly to
remove. One might argue that any decision by an NLRB panel,
even one in which members have confirmed by the Senate, is
subject to being overturned by the courts. That is true, but
such situations are addressed on an individual and case-by-case
What distinguishes the current scenario we are facing is
that a determination by the courts that the current NLRB does
not have the authority to issue any decisions will potentially
render every single decision made by the panel null and void.
Each year, the board decides hundreds of cases, and the impact
of those decisions is widespread.
A decision that nullifies all of those cases will have a
real impact on employers, unions and workers. One of the
hallmarks of our legal system is the fact that it provides a
certain degree of predictability to those parties who are
subject to its laws.
Given the fact that the current board's composition may be
determined invalid, there is a risk that we will lose that
predictability and certainty in our labor relations law for
what could be an extensive period of time. That loss will have
a direct impact on the many people who are subject to the
nation's labor laws administered by the NLRB. I ask that you
take this into consideration as you consider this issue.
Thank you very much for giving me the opportunity to
present my views.
[The statement of Mr. Marculewicz follows:]
Prepared Statement of Stefan J. Marculewicz, Esq., Littler Mendelson,
I wish to thank you Chairman Kline, Ranking Member Miller, and
Members of this Committee for inviting me to testify before you on this
My name is Stefan Marculewicz, and I am a Shareholder in the
Washington, DC office of the law firm of Littler Mendelson, P.C. With
nearly 900 attorneys, Littler is the largest law firm in the world
dedicated exclusively to the practice of labor and employment law. The
views I express to you here today in this testimony are my own. I am
not appearing here today on behalf of any client or other organization.
My testimony today will focus on the practical implications of
President Barak Obama's January 4, 2012 appointments of NLRB Members
Richard Griffin, Sharon Block, and Terrence Flynn should those
appointments be deemed invalid because of the manner in which the
President made them. I am not here to comment on the process followed
by the President making these appointments, or its constitutionality. I
will leave that to others. However, as a labor lawyer who spends much
of his day advising companies on the in's and out's of compliance with
the intricacies of the National Labor Relations Act, and the decisions
of National Labor Relations Board, I do feel I have a certain
understanding of the confusion and uncertainty that will result from
decisions of this new Board, particularly given that the quorum may
ultimately be determined invalid by the courts. That uncertainty will
be seen far and wide. Moreover, I believe it will have a particularly
disparate impact on small businesses which often lack the resources in
both time and money to pursue rights they might otherwise legitimately
Only a few years ago, the United States Supreme Court issued its
decision in New Process Steel, L.P. v. NLRB.\1\ In that case, the Court
concluded that Congress had not conferred authority to allow a two
member Board to decide cases. During the period of time that New
Process Steel was making its way through the courts, the two member
NLRB decided nearly 600 cases. For the most part, those cases consisted
of routine determinations by the Board on which the two members, one a
Democrat and the other a Republican, could agree on the applicable law.
Controversial matters were left for another day. Once the Supreme Court
issued its decision in New Process Steel, each of those decisions were
rendered invalid. Each one had to be revisited by the Board once it had
a proper quorum. Suffice it to say this created a significant amount of
uncertainty within the ranks of those whose cases had been decided by
the two member panel. For a period of time, that uncertainty remained.
Then eventually, the NLRB established a process to revisit each of
those decisions and worked through the cases. Because the cases decided
by the two member panel were generally non-controversial and ones on
which they could agree, the NLRB was able to revisit and resolve them
without lasting effects.
\1\ 130 S.Ct. 2635 (2010).
In the current situation, however, with a full complement of five
members, the NLRB is likely to rule on many substantive points of law.
Some of these points of law are highly controversial. Not only will
such decisions impact the parties involved in the cases themselves, but
because NLRB decisions become the law of the land, they will also
directly impact other employers, labor unions and even individuals. If
President Obama's recent nominations are determined to be invalid, the
lasting effects could be substantial. Every decision issued by this
Board will be accompanied by the very real possibility that it might
not be sustained. Companies trying to comply with the law will face a
dilemma of whether to comply with decisions issued by this Board or
refuse to do so. For many, waging a lengthy legal battle will prove too
costly in time, money and other resources to justify the expenditure.
Many employers will simply comply. However, if the law created by this
Board is ultimately annulled in the courts, it will be very difficult
indeed to pick up the pieces.
An overwhelming majority of NLRB cases are settled or resolved at
the Regional Office level. They never reach the full NLRB. Yet Regional
Office action is premised upon the current state of the law as defined
by the NLRB. If this practice holds true even in light of the current
composition of the Board, then that same portion of cases are likely to
be resolved. Only now they will be resolved pursuant to precedent that
is unstable. When a party resolves a matter at the Regional Office
level, typically that party commits to taking action in furtherance of
that resolution. That action is relied upon and followed by those it
affects. Such action could include the agreement upon the scope of a
bargaining unit that may exclude certain employees, it could include
creation and dissemination of a new company policy on social media or
email usage that affects an entire workforce, or it could include
permitting non-employee access to an employer's property whether it is
the employer's premises or is email system. The reality is that NLRB
doctrine becomes part of the fabric of labor relations in our economy
quickly as employers seek to comply with the law. Moreover, it impacts
employers of all types, large and small. If such doctrine is annulled
in its entirety, as is possible here, its effects will be difficult and
costly to remove.
One might argue that any decision by an NLRB panel, even one where
each member has been confirmed by the Senate, is subject to being
overturned by the courts. That is true, but such situations are
addressed on an individual and case-by-case basis. What distinguishes
the current scenario we are facing, is that a determination by the
courts that the current NLRB does not have the authority to issue any
decisions will potentially render every single decision made by the
panel null and void. Each year, the Board decides hundreds of cases,
and the impact of those decisions is widespread. A decision that
nullifies all of those cases will have real impact on employers, unions
One of the hallmarks of our legal system is the fact that it
provides a certain degree of predictability to those parties who are
subject to its laws. Given the fact that the current Board's
composition, may be determined invalid, there is a risk that we will
lose that predictability and certainty in our labor relations law for
what could be an extensive period of time. That loss will have a direct
impact on the many people who are subject to the nation's labor laws
administered by the NLRB. I ask that the members of this Committee take
these practical effects into consideration in your deliberations.
Thank you for giving me this opportunity to present my views.
There are some significant legal issues currently being considered
by the NLRB that will have a direct impact on employers, unions and
employees. The following are a few examples:
1. Social Media
Social media is the latest means by which much of the population
communicates, and as evidenced by the recent news involving Facebook's
announced initial public offering, will continue to grow into the
fabric of our society and economy. The NLRB has become very active with
respect to the interplay between communications through social media
and the Section 7 rights of employees to engage in protected concerted
activity. The NLRB's activities will impact both the union and non-
union workplace. While the NLRB's Office of the General Counsel has
been very active in its efforts to mold policy in this area,\2\ there
has been little in the way of guidance from the Board itself on how it
will ultimately settle on what constitutes a proper social media policy
as a matter of law. It is possible that within the coming months, the
Board, which currently has three cases pending before it on this
subject, will make new law.\3\ Those decisions, when they come, will be
very far reaching and have a significant impact on a large percentage
of employers and workers in the United States. Not only will such
decisions impact the parties to each of those cases, but employers and
workers will be required to reassess their approach to social media
with respect to the workplace. Employers will issue new or revised
policies, and employees will be subjected to them. If the Board's
decisions on this point are later overturned, then all of the work done
to comply with the nullified precedent will have been wasted.
\2\ See, NLRB Memorandum OM 12-31 (January 24, 2012) and NLRB
Memorandum OM 11-74 (August 18, 2011).
\3\ See, NLRB Press Release Acting General Counsel issues second
social media report, (January 24, 2012), https://www.nlrb.gov/news/
acting-general-counsel-isses-second-social-media-report (last visited
February 3, 2012).
2. Property Rights and Email Access
Another key issue pending before the Board relates to access to
private property by non-employees. The case currently pending before
the Board on this issue is Roundy's, Inc.\4\ This case has generated a
significant amount of interest among the employer community. In late
2010, the Board requested briefing on certain issues in that case. In
particular, the Board sought positions pertaining to the core issue of
non-employee access to private property. However, the Board also sought
positions related to the law governing the ability of employers to
restrict employees from using a company email system for organizing
activities.\5\ A decision by the NLRB on this topic will have an
immediate impact on the daily workplace. Not only will it have a direct
effect on an employer's ability to manage access to its property, but
there are also indications that it will impact the ability of the
employer to manage its internal email systems. A decision by this Board
in the Roundy's case will present employers with an immediate dilemma
regarding their policies and how they should enforce them. Those
employers who are unwilling or unable to challenge the viability of
such a decision through the expensive litigation process before the
Board, will simply comply and that compliance will have ramifications
throughout the workplace and beyond.
\4\ 30-CA-17185. See also, Roundy's Inc., 356 NLRB No. 27 (November
\5\ Register Guard, 351 NLRB 1110 (2007).
3. Bargaining Units
In August of 2011, the Board issued a decision in the case
Specialty Healthcare. In that case, the Board articulated a new
standard for determining the appropriateness of bargaining units of
employees. Specifically, the Board stated that groups of employees who
were ``readily identifiable as a group (based on job classifications,
departments, functions, work locations, skills, or similar factors)''
will be found appropriate, assuming they share a community of interest
as determined using the traditional criteria.\6\ Under the new
standard, such a group can only be placed in a larger unit with which
it shares a community of interest if the party seeking such placement
can demonstrate that the employees in the smaller group share ``an
overwhelming community of interest'' with the rest.\7\ Although there
have been a few cases that address certain aspects of this case, the
full extent and scope of this decision is still not clear. It is
therefore likely that this current Board will be called upon to decide
cases where issues arising out of Specialty Healthcare must be
addressed. Such clarification by the current Board will lend further
uncertainty to the process. Elections and unit determinations serve to
identify those who are eligible to vote and be represented by a labor
union, and those who are not. The law, which is well-developed in the
area of defining what constitutes an appropriate unit, is careful to
avoid disenfranchising employees. Indeed, it is unlawful for the Board
to find a unit appropriate merely because it is coextensive with the
extent to which the employees have been organized.\8\ Once a unit is
established, a majority of that unit has selected an exclusive
bargaining representative, and the parties have secured a collective
bargaining agreement, it is very difficult to reverse that process. Not
only have parties invested time and resources to reach that end, but
undoing such a situation can create unstable employee relations that
can have a far reaching impact on an employer's operations.
\6\ Specialty Healthcare, 357 NLRB No. 83 (2011).
\8\ NLRA Sec. 9(c)(5). 29 U.S.C. Sec. 159(c)(5).
4. Other Important Topics
There are several other items that have been identified by the NLRB
as important topics that may well result in significant substantive
changes to the law.\9\ Examples include, but are not limited to, the
\9\ See, NLRB MEMORANDUM OM 12-17 (December 7, 2011); NLRB
MEMORANDUM GC 11-11 (April 12, 2011)
Cessation of dues check-off. Currently the law permits an employer
to cease dues check-off upon the expiration of a collective bargaining
Information Requests for Financial Records. Current Board law
permits unions to seek financial records of employers in bargaining if
the employer pleas poverty or asserts that it cannot afford demands
made by the union.
Supervisory Authority to Assign and Direct. Current Board law
regarding the authority of supervisors to assign and direct arises out
of the Oakwood Trilogy of cases.\10\
\10\ Oakwood Healthcare, Inc., 348 NLRB No. 37 (2006).
An employer's right to withhold witness statements from a union.
Current Board law permits an employer to object to producing witness
statements obtained during an internal investigation to a union
pursuant to an information request.
Decisions by the Board on any one of these cases will be very
significant and could have immediate and far reaching implications.
That such decisions may be clouded with the risk that they will be
nullified, should be avoided.
5. Regulatory Agenda
The NLRB recently published final rules with respect to a notice
posting requirement, and amendments to the rules governing
representation elections. Earlier this year, NLRB Chairman Pierce
indicated that he intended to engage in further rulemaking in the area
of representation election procedure.\11\ The Chairman's expression of
intent is not a surprise given his statements at the November 30, 2011
meeting of the Board in which they adopted NLRB Resolution No. 2011-1.
Such regulations, will have a substantial impact on employers, unions
and workers, and are likely to be followed immediately upon their
\11\ Labor Board Chief to Push Organizing Rules, Sam Hananel
(January 26, 2012 Associated Press).
Chairman Kline. Thank you, sir. Thank you, all. I am just
looking at the panel, four attorneys, all very distinguished,
some agreement and some disagreement. But I know that Mr.
Andrews was probably extremely excited to walk in and see a
panel of nothing but lawyers. Is that not true?
Mr. Andrews. It is a vast improvement over what the
committee usually does, Mr. Chairman. [Laughter.]
Chairman Kline. I thank the gentleman. And did you come in
wearing your school colors, as well, Mr. Andrews? You went--I
forget which law school you--here is your opportunity.
Mr. Andrews. I went to Cornell.
Chairman Kline. There you go. Okay. I like to get that out
early because I knew that it was coming.
All right, seriously, we have the concerns that many of us
here on the panel have--probably on this side of the aisle--
have been addressed by some of you. And that is that there is a
great deal of uncertainty about the legality and the certainty
of decisions that are made by this NLRB with these new members
And so there will be challenges to decisions made. Starting
first with you, Mr. Marculewicz, how will employers challenge
the constitutionality of these recess appointments? What will
they do? What are the practical steps? What is going to happen?
Mr. Marculewicz. Well, the practical steps would be that if
the National Labor Relations Board issued an order--first of
all they wouldn't issue an order. But if there was a
certification of a representative, a labor union for example,
that would be a--well, if there would have been a certification
by the NLRB of a labor union as the exclusive representative of
a group of employees or a bargaining unit of employees, the
NLRB would issue that certification.
And then the employer would refuse to bargain; called a
technical refusal to bargain, technical 8-A-5. In that
situation, with the current board panel, if that would then be,
they would file a motion for summary judgment or the NLRB would
file a complaint. There would be a motion for summary judgment,
and the case would then be--an order would be issued by the
National Labor Relations Board to compel the employer to
bargain with that group of employees, with that labor union.
If that were to take place, at that point then the employer
would be able to appeal that to the court of appeals, and then
bring the matter into court. That would be one way it would
happen. If the NLRB also issued a decision, or an order, in a
unfair labor practice case, then you would have a situation
where that order would then be entered by the National Labor
Relations Board. And then it would be appealed by the employer.
So virtually every case, and substantive determination by
the NLRB, which comes in the form of an order, would likely,
potentially make its way into the circuit courts.
Chairman Kline. So the employer--one of the options would
be for the employer just to refuse to bargain. Would that be
good for employees?
Mr. Marculewicz. Uh, no.
Chairman Kline. Nor employers.
Mr. Marculewicz. Nobody.
Chairman Kline. You would have a real problem. It is
interesting to look at your testimony, talking about the
decisions following the New Process Steel case, where you had
some 600 decisions rendered invalid, and then some 90 appeals
or something like that to federal court. Expensive?
Mr. Marculewicz. Extremely.
Chairman Kline. And again, disruptive. And so if you are an
employer now, and you are looking at this situation, you are
going to have to make a decision about actions that you take
and not knowing if the board's decision is going to be upheld.
Mr. Devaney, in 2008, the Senate used pro forma sessions to
stop then-President Bush from making recess appointments to the
NLRB. Why did they do that?
Mr. Devaney. Well, unfortunately, Mr. Chairman, I think
Chairman Kline. Yes, thank you.
Mr. Devaney. Unfortunately, I think that was about public
policy. It was about partisan politics. And here is the reason
I say that. You were kind enough to share with me the CRS
studies of the recess appointment process. And Majority Leader
Reid was quoted in 2007 as the reason that they instituted the
pro forma sessions was to prevent President Bush from recess-
appointing members of the NLRB.
And so the complaints that were raised about the failure of
the board to function in 2008 were because of the pro forma
sessions instituted by the Democrat-controlled Senate, at this
point by Majority Leader Reid. It is amazing to me. Now, you
know, not 5 years later, Majority Leader Reid was asked about,
well, what did he think about the president's purported recess
appointments on January 4th.
And he said, well, you know, it is a great thing. I don't
know how you can consistently take those positions in light of
the history of this. And as I say, for the board it is a
particularly unfortunate development. The other thing I would
like to comment, to follow up, the case that I took after New
Process Steel we had an adverse board decision in 2006.
My client then appealed to the D.C. Circuit. We were
participants in the amicus curiae process in the Supreme Court.
The Supreme Court ruled favorably to our position. I
eventually, in 2011, was able to settle that case with the
regional office of the NLRB. But my client, in that instance
the Michigan Regional Council of Carpenters, expended a
tremendous amount of money and resources to vindicate the
rights that it was trying to vindicate.
And it was because the two-member board didn't have the
authority. If we face the same thing, the parties who want to
challenge us are looking two or 3 years out before we get
Chairman Kline. Thank you. My time has expired.
Mr. Miller. Thank you. Thank you very much, all of you, for
Ms. Davis, you make the point in your testimony that,
absent the functioning board, there really is no other place
for the employer or the employee to seek a remedy, where--in
whatever instance, how that is presented in the workplace, is
Ms. Davis. Yes. There is no place judicially for them to
seek remedy. They could resort to what we lived through in the
early 1930s, which is this massive strikes and massive
lockouts. And we are actually seeing a lot of those lockouts
now. There was an article a couple of weeks ago in The Times
about employers resorting to that as a tactic.
But there will be no orderly place where disputes can be
resolved. That is essentially leaving it to the law of the
jungle. If I may just address this uncertainty question for one
Mr. Miller. Yes.
Ms. Davis. I think it is wrong for three reasons.
Substantively it is wrong, process-wise it is wrong. And it
misses the point. It misses what is at stake. With respect to
the substance, the 11th Circuit, which looked at this, said
there is a presumption of constitutionality in the president's
recess appointments. Happened back since George Washington.
President Obama has appointed a fraction of the people that
the other administrations have appointed. So I think the
constitutional argument which, if you look at the OLC opinion,
goes back to a 1921 decision by the attorney general, is sound.
As a process matter--and I want to specifically address New
Process, which several of the witnesses addressed--I think that
is a terrific example of what we would have here.
Because we had a two-member board functioning, not knowing
they were legally quorum-less, for 27 months. And they issued
about 600 decisions before the Supreme Court said that they
were quorum-less. So what happened at this point? That is
really the comparative that we have here.
What happened was that 400 of the cases, two-thirds of the
cases, the party said, ``We are fine with that two-person
decision,'' and they went away. They needed someone to resolve
their disputes, and they were resolved. The other third of the
cases, the vast majority of them--I think 98 percent of them--
were resolved within a six-month period.
So this notion of this paralysis of the board--if somehow,
at some future time, the president, who is presumed to have
acted lawfully, is determined to have not acted lawfully--I
think is overblown. But more importantly, what is going to
happen to workers in this country who are fired, who are
threatened, who are surveilled. What is going to happen to
union's employers that really want to work with each other to
help a company, to help workers? All that will be put on hold.
And I think that harm far outweighs any speculative
uncertainty of the board's not functioning.
Mr. Miller. Thank you very much. What really concerns me in
your testimony, and this has been a concern of mine, of my
service on this committee--that over the years this practice
continues, where workers are fired or they lose their overtime
or they lose an advantageous shift or whatever penalty can be
imposed upon them for discussing collective bargaining,
discussing the desire to have a union, telling their employer
they would like to talk to others about doing this.
However they manifest their interest in a union, they lose
their job. And it is a very difficult process to get back to
that point and secure the wages that they lost. It is simply a
securing of the wages they lost, offset by, I guess, whatever
employment they find in the meantime.
Meanwhile, their families undergo a huge amount of economic
stress. You make the point that year in and year out about an
average of $93 million in back wages is restored to these
individuals. And I assume, in some instances, plus their
Ms. Davis. Right.
Mr. Miller. I don't know many middle class families that
can go through that. But that, obviously, is the people who are
being punished here. As you point out, two-thirds of the
argument says we know most of the things that come here are
worked out in front of the board one way or the other and
because a very experienced panel of people seek to have these
But now we create this kind of impasse that really just
pounds workers with employers. And unfortunately, too many
employers are willing to fire them or punish them in some other
way because they broached the subject. And that, to me, is the
real concern here.
The notion of whether this was politics in 2008 or is
politics today, the fact is it has been politics all along. I
think the president was right to breach, I think George Bush
was probably right to breach, if he believed in those
appointments. The fact of the matter is, you know, we had
members of the House, and the speaker, make a decision not to
recess. So the Senate couldn't recess for the specific purpose
that they couldn't consider recess appointments.
So you know, this is all interesting back and forth. But
the fact of the matter is, I guess this will be resolved in the
court. But you know, this board has been under assault by
members of this committee who have sought to tamper with the
work and intimidate the general counsel of this board.
We see the governor of South Carolina asking that only
Republican members resign. We see a major law firm with
business before the board conducting conversations with the
Republican member of the board, saying, ``Well, you know, if
you ever decide to leave we would be interested in you.''
Hello. This board has been under assault, as have workers'
rights, all across the country at every level of government.
And maybe it is about time the court stepped in and decide what
can be done and can't be done.
Chairman Kline. The gentleman's time has expired.
Mr. Roe. Well, as an obstetrician, I get a little sweaty
palm and my heart rate goes up when I am in front of four
lawyers, just to put that disclaimer out here. [Laughter.]
But I think I want to go back to this little document I am
holding in my hand right here, called a Constitution. And this
is messy, and it makes it hard to do. And it was specifically
done for that reason. And I want to start with Mr. Cooper.
And I have read this, and certainly read in Article One,
Section Five, Clause Four. And it is very clear to me your
description just a moment ago was very clear to me what was
done is unconstitutional. Now, the courts will decide that--not
me, and not anybody in this room.
But I have looked up every NLRB appointee since 1936. I did
a research on every single one of them, including Mr. Devaney
sitting right there. He was a recess appointment, but he was
then vetted by the Senate.
And Mr. Cooper, why is that process important to have these
people go in front of the Senate for a hearing, for background
checks and so forth, if you could enlighten us there.
Mr. Cooper. I will be happy to, Mr. Congressman. And I
can't provide a explanation for its importance better than the
one that Alexander Hamilton did in the Federalist Papers, in
Federalist No. 67 and again in Federalist No. 76. Alexander
Hamilton recognized, on behalf of the framers essentially, that
the regular appointment process was divided between the
president and the Senate, a majority of the Senate, in order to
ensure that a president did not have absolute power over the
appointment of federal officers.
There was a big debate, in fact, prior to the time they
settled upon that joint responsibility whether or not the
Congress should have the exclusive power to make appointments
to vacant positions.
And so the compromise was this shared joint responsibility
so that the Senate would provide a check, in our vast system of
checks and balances between the branches of government,
particularly the political branches, to ensure that. And I
think the formulation is that unfit characters, or nominees who
were there as a product of regional prejudice or favoritism of
some kind or another, would not be appointed and made part of
the federal core of officers.
I think the history of the clause, and the recess
appointment clause, makes clear that this was a fundamental
check on executive power.
Mr. Roe. I totally agree with that. And then to follow that
up, why would any president make anything but a recess
appointment if they can do that? If they can just bypass--that
clearly was put in there for that reason. To prevent a
president from having authoritarian power.
So if you take the current ruling that they have, that the
Justice Department brought down in this case, why would a
president not just do that any time with any appointment, and
just bypass the Senate?
Mr. Cooper. Congressman, it is a fair question. Because I
do believe that under the theory of the Office of Legal Counsel
for the constitutionality of these particular January 4 recess
appointments I think I would be hard pressed to see any genuine
constitutional restraint on the president's ability to use the
recess appointment power.
There would be continuing political restraints, certainly.
And I am quite certain that a president who made a regular
practice of this, because the founders' original understanding
what the genuine purpose of the clause, the recess appointment
clause, contemplated had been essentially eliminated and those
restraints had been abandoned.
I still have no doubt that the Senate would react, and this
body would react, negatively to a regular process of this kind
of use of the recess appointment power. But the only restraint
would be a political one. And the only tools left would be
political tools in the hands of this body and in the Senate.
Mr. Roe. Just one other quick question because my time is
about up. What happens, Mr. Marculewicz, with the regional
offices, when they make a decision, if this is ultimately
Mr. Marculewicz. Well, I think it----
Chairman Kline. The gentleman's time has expired.
Mr. Roe. Let me say, let me finish, with one thing. At the
conclusion of the Constitutional Convention, Benjamin Franklin
asked, ``What have you wrought?'' He answered, ``Republic, if
you can keep it.'' I say we have to follow this book or we
can't keep it.
Chairman Kline. Thank you. Then gentleman's time has
Mr. Andrews. Thank you, Mr. Chairman. At a time when we
should be considering the president's job proposal, we are
having an exquisitely interesting constitutional law seminar.
So I wish we weren't doing this, but I thank the four panelists
for their preparation and the wisdom of their testimony.
Mr. Cooper, your answer to the question as to who gets to
decide whether the Senate's really in session or in recess is
the Senate; because the Senate says so. And you testified that
the Senate's determination should end the matter. Let me ask
you this. If the Senate went into session, and by unanimous
consent deemed that it would be considered to be in session
forever, the Senate is a continuous body.
The Senate, by UC, says, ``We hereby declare we are always
in session.'' And then you had a sufficient number of senators
refuse to vote for cloture and refuse to take up presidential
nominees. So presidential nominees never get a vote. Does that
withstand constitutional muster?
Mr. Cooper. I think that would be a much, much more
difficult question, Mr. Andrews.
Mr. Andrews. That is why I ask it. Does it withstand
constitutional muster? What do you think?
Mr. Cooper. I beg your pardon?
Mr. Andrews. Does it withstand constitutional muster?
Mr. Cooper. I have serious doubts that it would. But I do
Mr. Andrews. Okay, what is defective about it? What is is
wrong with it that it might not pass constitutional muster?
Mr. Cooper. Well, Mr. Andrews, it is not within the
Senate's authority, I would concede, to say that something
exists that does not exist.
Mr. Andrews. We think they do that all the time, but that
Mr. Cooper. And if, in fact, the reality was that the
Senate was in recess as a matter of fact----
Mr. Andrews. Well, but don't they have the power, according
to your testimony, to define what recess means? I mean, there
is an existential meaning, I guess, to the term ``recess.'' But
according to you, the Senate is in recess if the Senate says it
is in recess; it is in session if it says it is. Is there some
limitation to that principle?
What is defective about my hypothetical?
Mr. Cooper. I would say this, Mr. Andrews. The Senate can
say it is in session if, in fact, it is in session. And the pro
forma sessions are, in fact, sessions of the Senate.
Mr. Andrews. But the interesting phrase here is ``in
fact,'' and who gets to define that. And you say exclusively
the Senate gets to define that. Exclusively.
Mr. Cooper. Within constitutional limitations.
Mr. Andrews. Okay, let us say that somebody thinks that
they haven't defined it within constitutional limitations. And
so they get standing somehow. And they file suit, and argue
that the Senate exceeded its constitutional limitations, which
On page four of your testimony--excuse me, page five of
your testimony--you approvingly quote a D.C. Circuit opinion
that says the meaning of ambiguous constitutional rules is non-
justiciable. So wouldn't that mean that the court couldn't even
consider the argument that the Senate had exceeded its
Mr. Cooper. I do not think that would apply in this
context, Mr. Andrews.
Mr. Andrews. What is different about it? Why would it be--
you said, or at least you approvingly cited, a case that said
that interpretation of the constitutionality of Senate rules is
not justiciable. Why would it be justiciable under my
Mr. Cooper. It is not justiciable in any case in which it
is ambiguous. And at a minimum here, the Senate's own
interpretation of its rules is ambiguous. And so this court
must defer to the Senate itself about its rules and about the
Senate's interpretation of its rules, which here----
Mr. Andrews. So is it----
Mr. Cooper [continuing]. Makes clear it is in pro forma
Mr. Andrews. Should the court--if you were clerking, as you
so distinctively did, for Chief Justice Rehnquist--if this case
came before the court, and you were writing--the justice asked
you for your opinion--is the case justiciable, or not, that I
stated? Would the court hear it, or not?
Mr. Cooper. I believe that the court could hear this case
as being justiciable.
Mr. Andrews. But what is the difference between my
hypothetical--or the Senate simply deems itself to be in
session, and the court interpreting the facts before us here?
Because I think you think that these facts are not justiciable.
Because you said the Senate's determination should end the
Shouldn't the court have the chance to review this?
Mr. Cooper. The court would, in my opinion----
Mr. Andrews. Well, that makes it justiciable, doesn't it?
Mr. Cooper [continuing]. Defer to the Senate's
interpretation of its rules.
Mr. Andrews. But if it is, that would mean it is
justiciable, though, wouldn't it?
Mr. Cooper. It would mean that the courts, like the
Congress and the president, should defer to the individual
body's view with respect to its rules, and whether or not----
Mr. Andrews. But I thought you said----
Chairman Kline. The gentleman's justiciable time has
Mr. Andrews. Thank you. Thank you, Mr. Cooper.
Chairman Kline. Dr. DesJarlais?
Mr. DesJarlais. Thank you, Mr. Chairman.
Mr. Cooper, I think we are just kind of in the middle of
this. When these recess appointments are challenged in federal
court, in your opinion will the court give deference to the
Senate, or the White House, and why?
Mr. Cooper. This is a good follow-on question, Mr.
Congressman, because I think it is clear from the court
decisions in this area that the Senate's view of its own
rules--under its rulemaking power, just as would be true of
this body's rulemaking power and its interpretation of its own
rules--should be deferred to by the other branches of the
The president isn't empowered to effectively interpret the
Senate's rules and to decide for himself in contradiction to
the Senate's own view that the Senate is or is not in session,
at least insofar as there is a factual basis to ground the
Senate's judgment on that point.
And certainly there is a factual basis in the pro forma
sessions which, again, have been used by both bodies of a
congress to comply with other constitutional requirements for
many years now, and was used by both bodies of this Congress on
December 23, 2011 to actually enact legislation. That, it seems
to me, would make it very nearly impossible for a court to say
the president was right in interpreting the Senate's action as
being a constitutional nullity.
Mr. DesJarlais. Okay, best case scenario. When do you think
a final decision as to the constitutionality of recess
appointments would be made?
Mr. Cooper. In the Supreme Court.
Mr. DesJarlais. Yes.
Mr. Cooper. I tend to agree with Mr. Devaney. I think that
would be a 2-year process at least. And it cannot get underway,
but it will surely get underway as soon as either the NLRB or
Mr. Cordray and the Financial Protection Bureau begin making
decisions and rulings that adversely affect individual
companies, individuals in unions and banks and others.
When that starts happening, I am sure that litigation will
proceed. And I think there is some litigation even now
Mr. DesJarlais. Okay, thank you. That is all I have.
I yield back.
Chairman Kline. The gentleman yields back.
Mr. Grijalva. Thank you, Mr. Chairman. I won't venture into
all the legal stuff, but----
Mr. Grijalva [continuing]. Although I am tempted, but I
can't even pretend.
Do your--Mr. Devaney, do your clients--as you mentioned,
you represent primarily employers. Do they benefit from the
National Labor Relations Board when it cannot function, it
cannot do its business with two members only?
And these three appointments were meant not only to fill
the board, but also to increase its functional ability to deal
with the things before it, even the most mundane and routine.
So do your clients gain, do they have a benefit, by the fact
that board cannot act?
Mr. Devaney. I don't think it depends on the facts of the
case. For example, I actually disagree with Ms. Davis with
respect to the impact of delay. I mean, there were 100 cases
that were appealed to the U.S. Court of Appeals out of the some
600 cases that were decided by the unlawfully-constituted two-
Now, for every one of those 100 people they had expenditure
for lawyers, they had expenditures for their clients. Those
were unions, those were employees, those were management. As I
said earlier, I think it is an institutional process. It is
true that unfair labor practice charges are--the number of
charges filed against employers are much higher than the number
of charges that would be filed by unions.
So to that extent, I guess you could make an argument that,
well, if the board can't function it delays the decision-making
on those kind of matters. I raise another concern.
Mr. Grijalva. Well, the testimony, you know, as far as I
can see, employers--not to mention the workers and their
families--I don't think they benefit from a dysfunctional board
that cannot make decisions. That, to me, is--even routine,
mundane decisions can't be made during this period.
And that, to me, seems to be really bad public policy, in
the sense that people are suspended without a decision. And no
doubt in my mind there is a benefit derived from some employers
of no decision being made and allowing this process to just be
strangled with no decision.
Ms. Davis, can you give me a couple of examples of those
mundane, non-controversial decisions that the board might be
expected to decide at any time? And these basic decisions that
I have been asking about, what happens if they are not made or
cannot be made?
Ms. Davis. Yes, I think that is a good question. I would
divide the universe of what is out there into several
categories. There are the little decisions that you mentioned
that matter to one employer and one union or one group of
workers. And I just went through one in New York City with the
musicians on Broadway who were campaigning against recorded
music. They wanted to keep pit music live.
And they decided they weren't going to shut down Broadway
like they did a couple years ago. They were going to engage in
a campaign to let people know what it meant to have live music
on Broadway. The employers came out, the Broadway League, and
said we are going to sue you if you do that.
So we filed a charge with the board. It went up, it got
resolved. Broadway stayed live, we were happy. They probably
weren't as happy, but it is a little case. Doesn't matter to
anybody but those two parties.
Then there are the significant decisions that are
precedent-setting that are out there. The definition of who is
an employee and who is an independent contractor, that is going
to matter for a lot of different people. That is pending.
Whether graduate students, graduate teaching assistants, are
able to organize.
My son is at NYU right now. He doesn't, quite frankly,
care. But a lot of people care about whether or not they can
form a union. Whether or not nurses, simple charge nurses or
supervisors--there are a lot of big-ticket items out there
that, quite frankly, I think those of us who advise clients for
a living, all of us, would like the certainty of a
I don't think it serves anybody's interest not to have
certainty. And finally, as the ranking member mentioned, the
impact on this economy of a essential gutting the ability to go
to the labor board is going to hurt unions. When it hurts
unions, it is going to hurt workers. When it hurts workers they
don't have money, they can't buy things.
As I think the former secretary of labor said it is a
righteous cycle. When you have good jobs you have a paycheck,
you can buy things, there are more jobs. If the board becomes
dysfunctional, if the labor movement is hurt and the workers
are hurt, ultimately the middle class in this country is going
to hurt. And that is going to hurt all of us.
Mr. Grijalva. Thank you.
And my last question, if I may, Mr. Cooper. As an expert--
and the motivation behind those appointments, I think, has to
be looked at, as well--as a constitutional expert, can you tell
the members of this committee what we need to do to address the
gridlock of executive appointments that now it seems that the
Senate holds up even the most mundane appointments?
These are critical to employers and employees in the
country, the one we are talking about today. But how do you
address that gridlock, given the fact that nothing seems to
move if it is recommended by this president.
Chairman Kline. I am sorry, but the gentleman's time has
Mr. Gowdy. Thank you, Mr. Chairman. And I want to thank the
ranking member for mentioning South Carolina, although I am not
positive it was in a complimentary way. We appreciate the
Some of us like the law because it provides order and
consistency and predictability, which is why we have this
concept called stare decisis, which we tend to like when we
like the underlying ruling, we tend to ignore when we don't. So
let me ask you this, Ms. Davis. Up until a month or so ago, the
administration's position was the recess had to last longer
than 3 days for it to be a recess.
The president's own deputy solicitor general argued that in
front of the Supreme Court. What is the new definition of
Ms. Davis. I think if you read the very lengthy opinion of
the Office of Legal Counsel you will see that dating back--
essentially the founding fathers and dating back to earlier
decisions--that there should be a functional analysis of what
constitutes a recess. Is the Senate actually there to advise
and consent. And here----
Mr. Gowdy. Well----
Ms. Davis. I am sorry. If I just say here, under their own
order and under the reality, they were not there.
Mr. Gowdy. So the executive branch determines when there is
a recess? Because whatever we decide to today is going to be
applicable whether it is a Republican president or a Democrat
Ms. Davis. Ultimately, and happily, the courts are going to
decide. And I am very glad that I am on this side of the aisle
and not subject to the constitutional cross-examination by
Congressman Andrews. Because I think he makes the right point.
Ultimately, we are not going to decide that in this room. A
court is going to decide it.
But I think what we need to look at is what is the import
of the paralysis that could be caused by a congressional
squabble that essentially would render this agency headless.
Mr. Gowdy. Well, do you agree Congress can defund this
Ms. Davis. Do I agree Congress has----
Mr. Gowdy. Sure.
Ms. Davis [continuing]. Has attempted to manipulate the
decisions of the agency----
Mr. Gowdy. It is a simple----
Ms. Davis [continuing]. Through the appropriations process.
Mr. Gowdy. It is actually a simple question. Can Congress
defund the NLRB?
Ms. Davis. I know Congress has attempted to defund the
NLRB. Whether or not it can properly defund it is, I think, the
question you should be looking at.
Mr. Gowdy. But you don't think we have the authority to
disband the NLRB and move the jurisdiction to another agency.
Ms. Davis. I certainly think that you could try to change
Mr. Gowdy. Right, that is what I am saying
Ms. Davis. But as long as the law--but that is a
legislative matter. As long as that law applies----
Mr. Gowdy. Yes, but if Congress has the power to defund it,
but Congress doesn't have the power to define whether they are
in recess and when they are not.
Ms. Davis. You do not ultimately have the power to decide a
recess. A court is going to decide what is a recess. The
Mr. Gowdy. So the judicial branch----
Ms. Davis [continuing]. What is going on in the interim.
And I think, quite frankly----
Mr. Gowdy. The judicial branch trumps the Senate and the
House in defining when there is a recess.
Ms. Davis. With all due respect to all of our opinions--
yours, and those of ours at this table--the constitutional
analysis right now is turning a bit on whose ox is being gored.
I think that we have to look at this soberly. The president
made a judgment, it was a read judgment. The opinion of his
Office of Legal Counsel was sound.
That is the same opinion that the head of that office under
George W. Bush gave. I think the question now is, now that that
is done what is going to be the impact of this. I think that is
the issue that everyone here should be focused on.
Mr. Gowdy. Well, let me ask you about the practical impact.
When did the president submit the names to the Senate, the NLRB
putative appointees? What is the date?
Ms. Davis. I believe in December, perhaps December 15.
Mr. Gowdy. Do you know whether the proper paperwork was
turned in contemporaneous with those----
Ms. Davis. I have no idea. My understanding is, though,
that those people have been vetted, just fully vetted. They
have been looked at by the FBI. It is exactly what happened
when President Bush recessed recess-appointed two people, when
President Clinton recessed-appointed John Higgins and Johns
Truesdale. There was no process of review here.
Mr. Gowdy. And, well, let me go back to my--what is the new
definition of ``recessed''? Can the president do it over a
Ms. Davis. No, I think----
Mr. Gowdy. And if not, why not?
Ms. Davis. I think the question is, is the Senate actually
available to advise and consent.
Mr. Gowdy. Well----
Ms. Davis. Now, if the Senate--I am going to just try to
answer your question. On a lunch break? I think that is a
different question, when they are conceitedly, by Senate order,
not able to do any business as opposed to coming back after a
30-minute lunch break. The Senate could call up these nominees
now. They could----
Mr. Gowdy. Which leads to my final point----
Ms. Davis [continuing]. Call up these nominees now.
Mr. Gowdy [continuing]. Because I am almost out of time.
Who controls the calendar of the Senate?
Ms. Davis. I am sorry?
Mr. Gowdy. Who controls the calendar? Because the Democrats
control the calendar in the Senate. So what we have now are
three names being sent to the Senate. Reid has yet to schedule
a hearing on any of them. So if you want to game the system you
just put your names up, you have a member of your own party
never schedule a hearing, don't do background checks, wait
until the Senate decides to take a nap, and then make the
Ms. Davis. I understand your frustration with the system.
But I have to tell you, those of who don't live in this town
are even more frustrated to see that the kind of games that are
going on is able to essentially paralyze an agency. I
understand your frustration.
Mr. Gowdy. Well, you know----
Chairman Kline. The gentleman's time has expired.
Mr. Scott. Thank you, Mr. Chairman. And Mr. Chairman, I
thank you for calling the hearing. Obviously we have a problem
here, but what I have not heard from the witnesses is what the
House of Representatives can do about it. Isn't it true, I will
ask any of the witnesses, that the House cannot confirm these
The House can't confirm these appointments. That is right.
Mr. Devaney. [Off mike.] The Senate--advise and consent.
Mr. Scott. Okay. And the House can't rule. We have heard a
lot constitutionality of these issues. There is nothing the
House can do that can resolve the constitutional issue before
us about the recess appointments. Is that right?
Mr. Devaney. Well, I think that is right. But on the other
hand, I think it is certainly legitimate for the Congress to be
concerned about the functioning and the proper functioning of
the National Labor Relations Board.
Mr. Scott. Okay, we are concerned. But there is nothing
that we can do about resolving----
Mr. Cooper. One thing, if I could just add. The president's
view of the pro forma sessions--and the OLC's view now,
apparently adopted by the president--those sessions are a
constitutional nullity would apply no less to this body, which
engages in pro forma sessions itself. And, in fact, enacted the
two-month payroll tax cut extension itself by a pro forma
session just as the Senate did.
And that view would extend no less to this body, I should
think, than it does to the Senate.
Mr. Scott. Well, the issue of the NLRB functioning is not
going to be resolved by this body.
Mr. Devaney. Well, Congressman, let me say this, just throw
this out as an idea. When I served as a commissioner of the
ITC, the Congress, in that statute, made the agency bipartisan.
If one of the concerns is the partisan rancor at the five-
member NLRB--which, by the way, in the statute it doesn't say
that there should be three of the president's supporters and
two others--since 1935, many of the statutes that Congress has
enacted make a different evaluation.
I mean, maybe that is something that might be considered.
Mr. Scott. Well, we are not going to resolve the
Mr. Marculewicz, you indicated that the problem with the
lack of a quorum is on rulings. Can the NLRA work, to some
extent, without rulings?
Mr. Marculewicz. The National Labor Relations Board, at the
regional office level, operates on a daily basis. Charges are
filed on a regular basis, election petitions, representation
case petitions are filed on a daily basis. They conduct
investigations, they issue complaints, they prosecute those
complaints, they conduct hearings.
Administrative law judges decide cases. And throughout that
entire process, they work very hard to resolve a lot of those
disputes. And so a very large number of cases are resolved at
the regional office level long before they get to the NLRB,
whether it is a two-member board panel or a five-member board
panel that has a situation. Where we are, we are looking at
potential constitutional issues with that, the three members'
And the issue with the regional office, when the regional
office works a case, they work that case under the authority
and under the precedent established by the National Labor
Relations Board. So, for example, when you had the two-member
panel the regional offices were investigating and prosecuting
cases consistent with the law that existed at the time.
And cases get resolved consistent with that law. The
problem here is that when you have a five-member panel that
issues a decision and, as Ms. Davis indicated, there are number
of very significant issues pending before the National Labor
Relations Board that apply to both union and non-union
workplaces--look at the Facebook or social media issues, look
at the e-mail access issues.
Mr. Scott. But you can't--I think the point we are trying
to make, and I just have a short period of time, is that there
can be some function of the committee.
Mr. Devaney. Congressman, could I follow up on that? There
is another uncertainty concern, though, that is raised. If, for
example, these appointments are found to be unlawful, if there
are any delegations done by this board to the general counsel,
the regional officers, or others there is another
And I will just point out, in my testimony----
Mr. Scott. Well, we know the constitutional problems.
Mr. Devaney. Well, I----
Mr. Scott. My question--and I just have a short period of
time left--I just want to point out that isn't it true that
every president since President Reagan has made recess
appointments to this board?
Ms. Davis. That is absolutely correct. And with respect to
your question, just to clarify, while certain things can be
investigated at the region, ultimately, if you have an employer
who does not want to bargain with the union, who does not want
to reinstate an employee who was unlawfully fired, and the
board is not functioning, we are out of luck.
Mr. Scott. Thank you. And just for the record, Mr.
Chairman, President Reagan made 240 recess appointments,
President George H.W. Bush 75, President Clinton 139, President
George W. Bush 171. And thus far, President Obama 32.
Ms. Davis. If I may just add, Teddy Roosevelt made 160
recess appointment in the blink of an eye. So I think we are
standing on firm ground here.
Mr. Cooper. Perhaps I could just add a----
Chairman Kline. The gentleman's time, I am sorry, has
Mr. Wilson. Thank you, Mr. Chairman. And thank you very
much for holding this hearing. We in South Carolina have found
out the hard way how significant NLRB is.
We were all very proud, in our state--and I was there for
the groundbreaking for the new Boeing facility, a million
square foot facility--they proceeded to hire 1,000 employees.
We have suppliers who are locating in South Carolina,
ultimately in the district I represent--Zeus of Orangeburg,
Prysmian of Lexington, Spirax of Blythewood.
We have nearly 10,000 people who were really looking
forward to producing 787 jetliners. And then out of the blue
the NLRB intervened and announced that Boeing could not produce
787 jetliners. Fortunately, with the leadership of persons such
as Congressman Gowdy and Congressman Tim Scott from Charleston,
we were able to push back.
But the NLRB, out of control, is truly destroying jobs and
threatening families in my state. And so that is why we are
concerned. And so, Mr. Chairman, your leadership of bringing
this issue is just crucially important.
Mr. Marculewicz, I wanted to ask you several questions. The
NLRB regional staff investigates violations of the National
Labor Relations Act and runs union representation elections.
What precedent does NLRB regional staff follow, and how will
this infect employers and employees?
Mr. Marculewicz. Thank you. I think the National Labor
Relations Board regional office staff, and I was one of them,
follows the precedent as set by the National Labor Relations
Board, the existing case law. When a new case comes out or is
issued by the National Labor Relations Board, then the Office
of General Counsel typically issues a memo and gives some
directive, particularly if it is a significant case.
So, for example, if you had a situation where there was a
new decision on social media policies there might be some
direction that would be given by the general counsel's office
that then would be investigated by the regional office.
If you have a situation where, as we could potentially have
with this five-member panel, decisions that are made on major
substantive areas of law have potential constitutional problems
associated with them--meaning that they could all be
overturned--the regional office is still going to pursue and
prosecute and investigate cases consistent with that law.
So what that is going to mean is, it is going to mean that,
first of all, employers, unions and workers are going to be
held accountable to that new law, number one. And those who may
not even be subject to cases are going to conform their
behavior to that new law.
Which means, for example, if you use a social media--a
company comes out with a new policy that defines social media
and how social media can be regulated in the workplace or
outside of the workplace--the National Labor Relations Board
issues a decision modifying what the parameters of that could
Then companies are going to be calling. And and this is
what I do on a regular basis. I get clients, and we will just
use a hypothetical example of Dan the pool guy who runs a small
business and says, ``I have, you know, 100 employees and social
media is a major means of communications. How do I operate?''
Well, I say, ``Well, Dan, unfortunately this is the
situation. They have changed the law, there are constitutional
ramifications. If the National Labor Relations Board, there
were to be a complaint or a charge filed against you by the by
some party with the NLRB, they are going to expect you to be
held accountable to this type of policy, even though there are
constitutional problems with it.''
And he says, ``Well, what am I supposed to do? How am I
supposed to deal with this? I am not going to fight these guys.
I don't have the money, I don't have the resources, I don't
have the time. I just want to run my business.'' So the reality
is that the implications and the ramifications, when you take
it from the--you know, they are going to implement these
policies and these new laws.
And when you have to try to put that toothpaste back in the
tube, if the U.S. Supreme Court decides, as Mr. Cooper has
indicated may happen, that there is a constitutional question
related to the appointment of these individuals, these
boardmembers, that is turning things over significantly.
It is a lot different when you have a two-member panel that
is just making noncontroversial sort of agreed-upon decisions.
Here, you are going to be having a situation where they are
going to be changing major substantive areas of law that are
going to have major impacts on everybody.
Mr. Wilson. Well, as we have seen in our state, an
intrusive government, sadly, is going to convince companies to
locate overseas. And that is a great concern I have, and so I
appreciate your efforts of raising these issues to the American
And again, Mr. Chairman, thank you. This is real-world
information the American people need to know. I yield the
balance of my time.
Chairman Kline. I thank the gentleman.
Mr. Kucinich. Thank you very much, Mr. Chairman. I ask
unanimous consent to insert into the record an article from the
New York Times dated January 22nd, 2012, ``More Lockouts As
Companies Battle Unions.''
[The information follows:]
[From the New York Times, January 22, 2012]
More Lockouts as Companies Battle Unions
By Steven Greenhouse
America's unionized workers, buffeted by layoffs and stagnating
wages, face another phenomenon that is increasingly throwing them on
the defensive: lockouts.
From the Cooper Tire factory in Findlay, Ohio, to a country club in
Southern California and sugar beet processing plants in North Dakota,
employers are turning to lockouts to press their unionized workers to
grant concessions after contract negotiations deadlock. Even the New
York City Opera locked out its orchestra and singers for more than a
week before settling the dispute last Wednesday.
Many Americans know about the highly publicized lockouts in
professional sports--like last year's 130-day lockout by the National
Football League and the 161-day lockout by the National Basketball
Association--but lockouts, once a rarity, have been used in less
visible industries as well.
``This is a sign of increased employer militancy,'' said Gary
Chaison, a professor of industrial relations at Clark University.
``Lockouts were once so rare they were almost unheard of. Now, not only
are employers increasingly on the offensive and trying to call the
shots in bargaining, but they're backing that up with action--in the
form of lockouts.''
The number of strikes has declined to just one-sixth the annual
level of two decades ago. That is largely because labor unions' ranks
have declined and because many workers worry that if they strike they
will lose pay and might also lose their jobs to permanent replacement
Lockouts, on the other hand, have grown to represent a record
percentage of the nation's work stoppages, according to Bloomberg BNA,
a Bloomberg subsidiary that provides information to lawyers and labor
relations experts. Last year, at least 17 employers imposed lockouts,
telling their workers not to show up until they were willing to accept
management's contract offer.
Perhaps nowhere is the battle more pitched than at American Crystal
Sugar, the nation's largest sugar beet processor.
Last summer, contract negotiations bogged down, with the company
insisting that its workers agree to higher payments for health
coverage, more outsourcing and many other concessions. Shortly after
the 1,300 unionized workers--spread among five plants in North Dakota,
Minnesota and Iowa--voted overwhelmingly to reject those demands, the
company locked them out and hired replacement workers.
That was on Aug. 1, more than five months ago, and since then the
workers and their families have been scrounging to make ends meet. Some
face foreclosure and utility disconnection notices.
American Crystal has hired more than 900 replacement workers to
keep its plants running. Federal law allows employers to hire such
workers during a lockout, although they cannot permanently replace
regular employees. Employers can pay the replacements lower wages,
although as is the case with American Crystal, the companies sometimes
need to offer higher wages and help pay for housing to attract
With many private-sector labor unions growing smaller and weaker,
and with public-sector unions under attack in numerous states, some
employers think the time is ideal to use lockouts, a forceful approach
they were once reluctant to use.
Many employers, though, say they have little choice.
Robert Batterman, a labor lawyer who represents employers, said
whether it was the N.F.L. or Sotheby's, which locked out 43 art
handlers in Manhattan last July, ``the pendulum has swung too far
toward the employees, and the employers are looking in these tight
economic times to get givebacks.''
``Employers,'' he continued, ``are using lockouts because unions
are reluctant to do what the employers consider reasonable in terms of
compromising. Employers are looking to reset their collective
After being out of work since Aug. 1, Paul Woinarowicz, a warehouse
foreman employed at American Crystal Sugar for 34 years, sees another
rationale for lockouts.
``It's just another way of trying to break the union,'' said Mr.
Woinarowicz, a member of the bakery and confectionery workers union.
``People here in the Red River Valley are really mad at American
Crystal. It was just like a knife stuck in your heart.''
With American Crystal earning record profits before the lockout,
the workers strongly opposed its push for concessions. Mr. Woinarowicz
noted that the company's most recent quarterly report showed a sharp
decline in production and profits--a development the workers said
showed the lockout was taking a toll. American Crystal said the drop
was due to a smaller sugar beet crop and higher operating costs.
American Crystal accuses union negotiators of being inflexible and
denies that it is seeking to break the union. For many employers,
lockouts have proved highly successful. Last July 17, Armstrong World
Industries locked out 260 workers at its ceiling tile plant in
Marietta, Pa., after they rejected the company's offer as stingy on
pensions and health coverage.
After being locked out for five months, the workers accepted a
contract only slightly different from the one they had originally voted
down. Union officials said the workers knew Armstrong had the upper
There have been several recent lockouts at hospitals, often after
nurses engaged in a one-day walkout. To hire replacement nurses from a
staffing company, hospitals often have to commit to hiring them for at
least a week, so a one-day nurses' strike is often followed by a four-
day lockout. But at some health care facilities, like West River
nursing home in Milford, Conn., where management locked out 100 workers
on Dec. 13, companies see lockouts as a way to wrest concessions and
set an example for workers at their other facilities.
DeMaurice Smith, executive director of the National Football League
Players Association, said the football, hockey and basketball leagues
ordered lockouts in recent years for a clear reason: to gain leverage
``The lockout is designed to put you at a distinct disadvantage,''
he said, saying it places huge pressures on players who typically have
short professional careers. The National Hockey League's lockout of
2004-5 canceled an entire season.
Mr. Smith said, ``A lot of players have careers of two or three
years, and you might get a player who asks, `At what point is this
fight worth one-third of my career?' ''
For Jeannie Madsen, a lab technician at American Crystal, the
lockout has meant strains for her and her fiance, also a worker there.
With her former husband also locked out and suspending child support
payments, she said she could not afford new school clothes and shoes
for her children and had to stop paying her daughter's orthodontist
bills. She said Wells Fargo would soon foreclose on her home.
``What's most upsetting is that it's affecting the lives of many
innocent children,'' she said.
The sides are holding occasional negotiations but remain
Ms. Madsen said the company was continually putting up barriers to
a settlement, essentially pressing the workers to surrender. Company
officials did not return phone messages, but Brian Ingulsrud, the
company's vice president for administration, wrote in an editorial for
a Fargo newspaper that ``American Crystal Sugar remains committed to
Chairman Kline. Without objection.
Mr. Kucinich. Thank you. I have had the opportunity to
visit two locked-out groups of workers in the last few days.
One in Findlay, Ohio at Cooper Tire, where the United
Steelworkers have been locked out since around Thanksgiving.
And another one in Sandusky, Ohio at Sabanci, where members of
the IAM have been locked out since January of 2011.
Now, Ms. Davis, as you testified, lockouts have been more
frequent. Are unions striking more?
Ms. Davis. Unions are actually striking much, much less.
They are sitting down at the table now. They understand the
reality that this country is facing, and they are sitting down
at the table, and I have done it countless times, with
employers trying to save the employer's business in order to
save their jobs.
We just went through it at the New York City Opera. The car
companies are a terrific example, where the union sat down with
the car companies and they reached an agreement. And as a
result of that agreement, the car companies are back in
business. We have 160,000 jobs that have come back to this
Mr. Kucinich. But let us----
Ms. Davis. That is what the unions are trying to do.
Mr. Kucinich. But let us look at what is happening in
Findlay and Sandusky, and also in Minnesota, where American
Crystal Sugar has locked out its employees. In every case, they
are looking for concessions beyond which workers can't sustain.
In every case, they are using lockouts as a bludgeon to drive
down workers benefits and wages and to literally try to break
unions. Is that not true?
Ms. Davis. I think that is exactly right. And quite
frankly, it is one thing when it happens in football and hockey
and basketball. But it is another thing when it really happens
to the 99 percent who, as a result of that lockout, cannot pay
their medical bills.
Mr. Kucinich. So, okay. And I have read not only not pay
medical bills. Not even be able to have the money to buy their
kids shoes. So here is the question. What is the penalty for
lockouts? Is there anything punitive that is in the law right
now that would really come down very hard on an employer who
locks out his employees who are just trying to exercise their
rights to collective bargaining?
Ms. Davis. There are legal and illegal lockouts. In a legal
lockout, there is nothing that anybody can do. In an illegal
lockout, which is often the case--we have seen that a lot--the
only remedy is to ultimately file a charge, and go to the NLRB.
And that is one of the reasons that the paralysis in the NLRB
will be hurting workers even more.
Mr. Kucinich. So with the paralysis in the NLRB, would it
be helpful if there was additional legislation to protect
workers who are locked out? And if, in fact, it was found to be
an unfair labor practice, for punitive measures be taken
against the employer. Would that be helpful, if there were
Ms. Davis. We welcome any worker-friendly legislation
because, ultimately, we think it will help this country.
Mr. Kucinich. Mr. Chairman, members of the committee, I
just want to suggest that, you know, yes, there are union
disputes with management. But at times, there is egregious
violations of workers rights; the right to organize, the right
to collective bargaining, the right to strike.
And we need to protect the workers rights. And what I am
going to be proposing--and I would ask members to consider
this--is that any company that is found to have illegally
locked out their employees that they be debarred from any
federal contracts whatsoever. I think this is the only way that
we can have an effective stop against this growing practice of
trying to lick workers out.
We are in a whole new area. And I want to ask one more
question if I have time. Is there a constitutional issue here?
Is the worker's right to association here actually under
Ms. Davis. There is no question that it is under attack. It
is protected by the statute, and it is under attack by every
employer that wants to keep its workers down and keep a union
out. I have to just mention one thing about the Boeing issue
that was raised by the congressman earlier.
Boeing, ultimately, at the end of the day, is a success
story. What happened is, a union sat down with a company, they
worked out an arrangement, they saved jobs in South Carolina,
they saved jobs in Washington. That is how the system is
supposed to work.
Mr. Kucinich. So the system can work if the law is
followed, but if corporations go ahead and try to smash a union
using lockouts as a device they are breaking down the system,
violating the constitutional rights of workers. And there ought
to be recourse for workers against these corporations.
That is my point. What is the punishment? You throw a whole
group of people, 1,000 people, out of work you are condemning
their families to poverty. We have to have some recourse if it
is an illegal action. And often it is, and that is why I think
we cannot be silent or neutral on this question.
When workers are locked out, they have to have recourse of
their rights. If the NLRB isn't functioning, workers are not
able to gain their rights. And the balance has already been
tilted viciously against workers. And I think it is time that
we reset the balance in their favor.
Thank you very much. I yield back.
Chairman Kline. The gentleman's time has expired.
Mr. Rokita. Thank you, Mr. Chairman. I yield to a
statesman, Dr. Phil Roe, for the purpose of a quick follow-up
to his questioning.
Mr. Roe. Just a couple of quick follow ups. I, again, have
looked at every NLRB appointee since 1936. And the first one
that was appointed by recess was President Carter. And after
that, President Reagan, but not during a recess. It was during
a recess. It was during a recess where the Senate was not in
pro forma session.
So this is the first time I could find, through research,
since 1936, that that happened. And I think it is a very
serious constitutional issue between the balance of powers. And
I agree with you, Ms. Davis. We need a functioning NLRB, no
question about it.
And this will be a disaster if these folks layer a rule by
the Supreme Court 2 years from now that everything they ruled
on doesn't stand. You have got to go back to 2012, and then go
through all of that again.
Mr. Cooper, am I correct, or am in wrong in that?
Mr. Cooper. Congressman, I believe you are correct. I would
only add to your point that it is true that presidents
throughout history have exercised their power under the recess
appointment clause. That is an important power. It was
contemplated by the framers as a necessary adjunct to the joint
appointment authority between the president and the Senate.
But no president until January 4th had ever exercised the
recess appointment power on the day after the Senate met in
session and 2 days before it met in session again.
Chairman Kline. Congressman?
Mr. Cooper. That has not happened.
Mr. Roe. I will yield back.
Mr. Cooper. And that is what is unique, and that is what
extends now the concept of this power to a place where it is
never gone and where it has uniformly been said not to exist.
Mr. Roe. Okay, I yield back to Mr. Rokita.
Mr. Rokita. Thank you, Dr. Roe. And thank you, Mr. Cooper,
for that clarification.
Real quickly, Mr. Devaney, do you have something to add to
Mr. Devaney. Well, I just wanted to say that, you know, I
had the distinction of being recess appointed by President
Reagan, and then I was confirmed by the Senate. I mean, that is
the way the system is supposed to work. It was an inter-
Mr. Rokita. And there was not confirmation here, bottom
Mr. Devaney. Exactly. And then I was confirmed.
Mr. Rokita. Thank you.
Mr. Chairman, listening to the discussion here I am very
concerned that some people on this committee don't feel the
need to have this constitutional discussion, don't feel the
need to maintain this Constitution. I simply, for the record,
want to remind everyone of the oath that we took.
``I do solemnly swear that I will support and defend the
Constitute of the United States against all enemies, foreign
and domestic. That I will bear true faith and allegiance to the
same. That I take this obligation freely, without any mental
reservation or purpose of evasion.''
It doesn't talk about Mr. Obama's, President Obama's----
Mr. Miller. The gentleman--will the gentleman yield?
Mr. Rokita. No. One second.
Mr. Miller. To apologize?
Mr. Rokita. Okay, never----
Mr. Miller. Trying to figure out what your point is.
Mr. Rokita. The point is, we can----
Mr. Miller. You are challenging other----
Mr. Rokita. This is the most important thing we could be
Mr. Miller [continuing]. [Off mike.].
Mr. Rokita. A great way to----
Mr. Miller [continuing]. Resolution----
Mr. Rokita [continuing]. This country is to let the free
Mr. Miller. And in the political this would go to the
Mr. Rokita. So to describe this hearing as a waste of
Mr. Miller. It is a waste of time.
Mr. Rokita [continuing]. As I have heard several times----
Mr. Miller. You have--no, you have no impact----
Mr. Rokita [continuing]. Is, we do have an impact. As the
witness has stated, it is demeaning to the process, it is
demeaning to the Constitution, it is demeaning to the oath that
Mr. Miller. No, it is not.
Mr. Rokita. And Chairman----
Ms. Davis. Actually, not all the witnesses stated that,
Mr. Miller. That is how----
Mr. Rokita. And, Chairman, because we don't have order
Chairman Kline. The gentlemen, plural, will suspend.
Mr. Miller. And it will go to the Supreme Court, and they
will make a determination.
Mr. Rokita. Mr. Chairman, because----
Chairman Kline. The gentleman's not recognized.
Mr. Rokita. But this committee----
Chairman Kline. The gentleman has a minute and 7 seconds
Mr. Rokita. Mr. Chairman, I ask for some additional time,
since we didn't have regular order.
Chairman Kline. The gentleman has 59 seconds left.
Mr. Rokita. Ms. Davis, we talked about the rule of the
jungle. And it reminds me of what, I believe, John Adams said.
We are a country of laws, not a country of men. From your
testimony, I want to clarify something. Are you saying that the
NLRA, or the NLRB for that matter, trumps the Constitution?
Ms. Davis. Obviously not. What I was saying is, that as
long as there is an NLRA and also there is an NLRB that it is
incumbent upon everyone to allow that agency to function. And
constitutional niceties will be decided later, so----
Mr. Rokita. Constitutional, I see. Let me----
Ms. Davis. I am sorry. I was just in the middle of my
Mr. Rokita. Constitutional niceties. I know you said that
this is the longest time that you have studied the Constitution
in awhile. And I appreciate that, but this is important. This
is more than a constitutional nicety. I want you to assume
Assume that what was done with these ``recess
appointments'' was found by a court, or whoever the decider is,
to be unconstitutional. Do you agree that the Constitution
Ms. Davis. Well, first of all, of course the Constitution
holds supreme. And I think the issue that we have been debating
is who decides. Does this chamber decide or does a court
Mr. Rokita. If----
Ms. Davis. But I think the question--I am sorry, you just
have to let me answer your question.
Chairman Kline. The gentleman's time has expired.
Mr. Rokita. I was trying to save your time.
Chairman Kline. Ms. Woolsey?
Ms. Woolsey. Thank you, Mr. Chairman.
Ms. Davis, you may complete your thought.
Ms. Davis. Thank you very much. What I was saying is, the
question of what is the balance of horribles here, in the event
we do not know how a court is going to decide? On the one hand,
if a court were ultimately to rule that the recess appointments
were unconstitutional--which I think, for the reasons outlined
in the OLT report, that is unlikely, but let us assume that
that is a possibility--we would be exactly in the situation we
were after New Process Steel.
You would have scores of parties who are happy with the
decision, and they will go away. And you will have some cases
that will have to be revisited. And that was done in a couple
of months. On the other hand, if the agency is essentially
rendered impotent now, which is what is being urged on the
other side of the aisle, the consequences for unions, for the
collective bargaining processes, and for workers are enormous.
And I think that is the issue of what is at stake here.
Ms. Woolsey. Thank you very much. Which leads me right in
to asking the question what is more uncertain? Being paralyzed
by process, or moving forward to make sure that we can make
decisions and decisions are made related to, in particular, the
most difficult disputes that are going on.
Okay, so I am going to ask each one of you what would you
have done to unlock this process?
Mr. Devaney. You want to go this way, Congresswoman?
Ms. Woolsey. No, I will start down there. We get you either
Mr. Cooper. I would have advised the president to remain
carefully and strictly within the bounds of his constitutional
authority. And that at least in this instance, would have meant
that the Senate had indeed found a way to prevent him from
making recess appointments and----
Ms. Woolsey. Okay, but what would you have done if you were
president, Mr. Devaney?
Mr. Devaney. I would not have made these recess
appointments, and here is why. When I served on the board in
1993 and 1994, we went down to two members. At that point, the
solicitor of the NLRB gave advice to us that said, ``You know,
you really oughtn't to decide cases with only two members
'cause the statute says a quorum is three.''
Now, you know, years later the board made a different
decision and they lost in New Process Steel. I think because of
the institutional importance of fair decision-making being
looked at by the parties that this was a very bad idea and a
very bad precedent by the president.
Ms. Woolsey. What would you have done, Ms. Davis?
Ms. Davis. I would actually also have advised the president
to remain strictly within the constitutional authority. But we
would have reached a different conclusion. And after reaching
that conclusion, which is laid out in the OLC opinion, I would
have lauded him for looking at the real world consequences of,
on the one hand, the Senate gaveling in and out for a couple
seconds, and on the other hand the fact that a statute and an
agency would be dysfunctional in the years that a marathon
litigation was occurring.
Ms. Woolsey. Okay. Mr. Marculewicz?
Mr. Marculewicz. Well, thank you for the opportunity to put
myself in this position. I think----
Ms. Woolsey. You are welcome.
Mr. Marculewicz [continuing]. By virtue of the example that
has already been set, there are two confirmed members of the
National Labor Relations Board, Chairman Pearce and Member
Hayes. They were confirmed by the Senate. There is nothing to
prevent the Senate and--or prevent me, as president, from
nominating candidates to the National Labor Relations Board who
could be confirmed by the Senate.
Ms. Woolsey. Well, all right.
I would like to ask Mr. Devaney, what do you consider ``in
session?'' What was accomplished during those seconds that the
Senate was in session?
Mr. Devaney. Congresswoman, I am not going to be a defender
of the Senate's position, which is----
Ms. Woolsey. Yes, but you kind of were. You were saying
they were in session----
Mr. Devaney. Well, I--the reason that I think the president
made a mistake in public policy decision is I think that even
as the Justice Department admits there is no certainty here.
Ms. Woolsey. No.
Mr. Devaney. So it does put a cloud over all the decisions
that the NLRB is going to make. I mean, in a near-term thing,
if I was advising the board, I would say that when they decide
by panels they ought to make sure that the two confirmed
members are a majority of the three sub-panels----
Ms. Woolsey. Okay. I am going to let Ms. Davis----
Mr. Devaney [continuing]. Because that at least might give
them a shot.
Ms. Woolsey [continuing]. Do the cleanup batter on this
panel for me. What is worse? Uncertainty, or at least going
forward? What is worse?
Paralysis? Via uncertainty, or action?
Ms. Davis. I think, in the broadest sense, what is worse is
that this country going to to be hurt, the economy is going to
be hurt, and workers are going to be hurt. If the only agency
we have that is capable of enforcing the labor laws is rendered
incapable of doing anything.
If you look at the economy back in 1955, when we had a
third of the workers in this country in unions and we had jobs
and we had purchasing power and we had a middle class, and you
look at the economy now, where we have less than 8 percent of
the workers in unions and we have an economy that is barely
sputtering, I think it is very clear that at the end of the day
the day we have to look at this from the ground up and see what
is in the best interests of this country.
And I think that is pretty clear.
Chairman Kline. Gentleladies, time has expired.
Mr. Walberg. Thank you, Mr. Chairman. And I detect I have
missed some very interesting testimony and questioning while I
was over dealing with issues related to veterans affairs and
contracting and problems that go on there.
But one of the most beautiful parts of democracy is its
messiness. Messiness that speaks of freedom and choice and
opportunity, and disagreement that go on. And frankly, when I
see what is going on here with the president and his non-recess
recess appointments, I am willing to accept the messiness of
It causes me great concern. And, of course, this is first
and most important function. Whether it is an education
workforce committee or judiciary committee or whatever, to
uphold the Constitution. So I appreciate the discussion today.
Mr. Marculewicz, over the last few months the board has
been delegating its authority to the general counsel in
preparation for a loss of quorum. What authority has been
Mr. Marculewicz. Actually, it is the board that delegated
certain authorities related to issues that could have become
impediments to processing representation case elections and
unfair labor practice charges through to litigation.
So for example, the board delegated to the chief
administrative law judge the authority to rule on dipositive
motions, such as motions to dismiss, motions for summary
judgment and other things of that matter. And that would enable
an initial ruling to take place on that subject.
If the ruling--if it were denied, then the case could
proceed to litigate, fully be developed. And then, ultimately,
once the board is fully constituted, they would then be able to
rule both on the motion of the decision by the chief
administrative law judge as well as the substance of the case.
And that is really, I think, the way I see that. It was
designed to keep the process going during this interim period.
Mr. Walberg. What functions cannot be delegated?
Mr. Marculewicz. You know, the ultimate decision-making on
cases, the ultimate orders. They can't delegate that to
anybody. That is their exclusive authority.
Mr. Walberg. What is, then, the practical effect of a
Mr. Marculewicz. The practical effect of a broken board
is--I wouldn't call it--I mean, the practical effect of a
broken board, as you call it, is such that it would still
operate. I mean, so much of working and what companies deal
with and employers and unions deal with before the National
Labor Relations Board is handled at the regional office level.
It is not handled at the highest level of the agency. They
have cases they decide, yes. And ultimately, if one feels they
need to push the issue all the way to get a final board order,
yes, that could be done. But most of these cases are resolved.
Most of these cases are settled beforehand. Most companies
don't have the wherewithal or the desire. I talk about Dan, Dan
the pool guy. He doesn't have the money to fight a case all the
way to the bitter end, and they don't want to do that.
Mr. Walberg. Thank you. I would like to----
Ms. Davis. May I just address your question, as well?
Mr. Walberg. I would like to yield the remainder of my time
to Representative Gowdy.
Mr. Gowdy. I thank the gentleman.
Mr. Chairman, I would just say this in the remaining time.
I started by talking about respect for the rule of law. And it
really shouldn't matter, with the vagaries or vicissitudes of
political cycles, what definitions mean. And I just find it to
be dangerous that pro forma sessions have constitutional
significance when there is a Republican in the White House but
they don't when there is a Democrat in the White House.
And recess has one definition when there is a Republican in
the White House, but a different definition. And I think the
chronology is important here. On December the 14th is when
these names were submitted to the United States Senate. And the
notion that they couldn't do any work, or this newfound
functionality analysis when they passed the payroll tax
extension, you can't have it both ways.
They send names on December the 14th, no background check,
none of the proper paperwork required by the Senate. And then
he waits a couple of days and he mask these recess appointments
because it happens to be a political year. In 2010 it wasn't a
political year, but his justice department argued that a recess
must be longer than 3 days.
So the only thing different, Mr. Chairman, is the calendar.
And I had hoped to go through this hearing without making
reference to Boeing, but someone cited Boeing as an example of
the wonder of the NLRB. And I will tell you, my perspective is,
a lawsuit is filed. Once Boeing agrees to send more union work
to Washington State, the lawsuit is withdrawn.
In the criminal justice system, you don't file complaints
solely to get people to do what you want them to do. You either
enforce the law--if Boeing made a mistake, don't withdraw with
complaint. But don't use it to send more union work back to
I thank the gentleman for yielding his time.
Chairman Kline. Thank the gentleman.
Mr. Hinojosa. Thank you. Chairman Kline and Ranking Member
Miller, I am deeply concerned that this committee hearing is
just another assault on American workers and the National Labor
Relations Board. Instead, it seems to me that we in Congress
should be doing everything possible to move a jobs agenda
forward and provide relief to the millions of workers who have
lost their jobs in the last 6 years.
My first question is for Susan Davis. Ms. Davis, in your
expert testimony, does the Constitution give the president
clear powers to make appointments when the U.S. Senate is in
Ms. Davis. Yes, and I think no one on this panel would
actually disagree with that.
Mr. Hinojosa. When will the definition of when the Senate
is in recess be available to us?
Ms. Davis. Well, I think that there are challenges that are
going to be filed. And I agree, actually. I think it was a
conservative estimate given that it was 2 years. I would
actually say that this case winding its way up to the Supreme
Court may take between two and 3 years.
Mr. Hinojosa. Two to 3 years.
Ms. Davis. And if I may just add, the newfound
functionality analysis which the congressman referred to dates
back to President Monroe. This is not a new or radical
Mr. Hinojosa. Ms. Davis, in your testimony you mentioned
that there are a number of significant cases pending at the
board that will provide important guidance to the employers,
the workers, and to unions. Do these cases involve the proper
standard for determining whether those individuals or
contractors or employees covered by the NLRA?
And if the board were to lack a three-member quorum, what
would happen to those pending cases?
Ms. Davis. Those pending cases would sit there for years.
Mr. Hinojosa. Would the workers or the employers have any
other remedies to seek redress?
Ms. Davis. There are no other remedies under our current
legal system to seek clarity on labor management relations. So
the notion of who is an employee, who is an independent
contractor would not be resolved for years. That is something
that is intellectually interesting to us.
But on the ground, for those taxi drivers in New York and
others who are looking for clarity, it really is determinative
of their ability to survive and support their families.
Mr. Hinojosa. Thank you.
My next question is to Dennis Devaney. Mr. Devaney, should
the NLRB be able to impose sanctions against lawyers for filing
frivolous motions and for engaging in genuinely frivolous
Mr. Devaney. Obviously, the federal courts have the Rule 11
sanction as a possible remedy for that. Currently, the board
doesn't have that, although it does have the ability to
sanction lawyers who have violated the professional ethics
rules that have been adopted by the board.
So that seems to me that is something that the Congress
would be the proper determinant of, not me.
Mr. Hinojosa. Mr. Devaney, in looking at some of the
materials there is a section that talks about approximately 490
cases were resolved and were no longer pending at the board,
even after New Process Steel. That means the line for everyone
else who was waiting to have their court was shorter. Isn't it
better to be in the shorter line?
Mr. Devaney. Well, I think it is better to be in the
shorter line. But let me say this. When the--when the board,
the two-member board, said they were going to be able to go
forward they said we would only decide routine cases. I mean,
my client certainly didn't believe it was a routine case, and
spent substantial sums defending their position.
There were 100 cases that were taken on appeal. So, in
fact, I completely disagree with Ms. Davis as to her
characterization that all of these were just these routine
matters. They weren't, you know. The fact that the boardmembers
who wanted to delegate might have characterized them that way,
certainly the parties that were being, you know, penalized
didn't view them that way.
So I think it is just wrong. I think that is a wrong
Ms. Davis. May I just clarify?
Mr. Hinojosa. Yes. Yes, you may.
Ms. Davis. I distinguish between, on the one hand,
describing these cases as non precedent-setting cases, which I
do. The cases that aren't rocking everyone's world. But let me
clarify. And I do agree with Mr. Devaney. These cases matter to
the parties. They matter to the parties a lot.
And the fact that they were able to get decisions and
certainty--and two-thirds of them, after the two-person board
was declared quorum-less, decided to stick with those
decisions. So I think those are important, and I think it shows
the process works.
Mr. Hinojosa. My time has----
Mr. Devaney. Can I just say I disagree with that. I think
what happens is, if it is a notice posting--which was a lot of
the issues there--the parties are not going to spend resources
on lawyers, or their own resources, trying to have a notice
posting changed. But on this----
Chairman Kline. But----
Mr. Devaney. Yes.
Chairman Kline. The gentleman's time really has expired.
Mr. Devaney. Thank you, Mr. Chairman.
Mr. Goodlatte. Thank you, Mr. Chairman.
Mr. Devaney, how many NLRB votes are necessary to override
an NLRB precedent?
Mr. Devaney. Well, I think that is really important,
Congressman. In fact, historically--at least going back to when
I became a member of the board in 1988, coming forward to
today--by tradition, the boardmembers have agreed that they
will not change major precedent for significant precedent
unless they have a five-member board and a majority of three.
And one of concerns, and one of the main concerns I have
about the cloud over these recess appointments is, if there are
major changes in policy by the new board, with a recess-
appointed quorum--three of the five being recess appointees--
then I do that these major cases are subject, then, after the
litigate and the court's resolution, to be found not to be
And that is bad process, that is bad policy.
Mr. Goodlatte. So constitutional niceties could have some
serious implications for people who not only might be waiting
some time to get a decision, but then once the decision is
rendered if it is then reversed because of the Supreme Court'
ruling, you then have to start the process over again. Is
Mr. Cooper. No question about it. And I have to say that
the 600 rubber stamps by the new board were also something I
don't think was the finest hour of the NLRB when they revisited
the two-member decisions. Only a handful of decisions came out
differently, and I don't think that is particularly a good from
a due process perspective.
Mr. Goodlatte. And what is the NLRB's responsibility as a
Mr. Cooper. Well, you know, I think that the board is
supposed to impact the National Labor Relations Act,
boardmembers are supposed to call them as they see them. You
know, I think that is the proper functioning of the agency. I
mean, certainly the Congress set up this statute so that when
presidential elections happen they mean something, and the new
president gets to appoint his members if there are vacancies on
Mr. Goodlatte. Do you think you are, just noting the
rubber-stamping of the overwhelming majority of those recent
decisions, do you think that reflects on their being a neutral
Mr. Cooper. No. In fact, I thought was an unfortunate
result of their original mistake, and decision to go forward
when they only had two members.
Ms. Davis. I think Member Schaumber would actually be quite
distressed to hear----
Mr. Goodlatte. Ms. Davis. Regular order, Mr. Chairman. Ms.
Davis was not recognized to answer the question.
I have a question now for Mr. Cooper about the legal
constitutional niceties that Ms. Davis referred to.
Mr. Devaney. Congressman, could I just follow up one thing?
Mr. Goodlatte. Go ahead, Mr. Devaney.
Mr. Devaney. And I talked to Member Schaumber and, in
retrospect, I think he regrets having agreed to do the two-
Mr. Goodlatte. Thank you.
Mr. Cooper, when we talk about constitutional niceties
here, we are not simply talking about the implications for
these three appointments to the board, two of whom by the way
were nominated with a couple of weeks of when the president, in
my opinion, abused his authority under the Constitution and
named them as recess appointments.
But be that as it may, the constitutional niceties referred
to by Ms. Davis have implications far beyond those three
members, do they not?
Mr. Cooper. They do.
Mr. Goodlatte. They have implications far beyond the
National Labor Relations Board, do they not?
Mr. Cooper. They do, Mr. Goodlatte.
Mr. Goodlatte. They have implications that affect, really,
the power of the United States Senate, acting as the designated
portion of the United States Congress to advise and consent on
presidential appointments with regard to virtually any
And it would really nullify the ability of the Senate to
act in a timely fashion to review people for appointments if it
were found that a couple of weeks after the president named
somebody, when Senate is in pro forma session, that any
president going forward--this one or any in the future--could
name anybody they wanted to, to any position in the executive
branch or judicial branch of our government.
Is that not correct?
Mr. Cooper. The recess appointment power would be very
substantially, substantially expanded. And it is difficult to
see what the limit on it would be, other than political limits,
Mr. Goodlatte. Yes.
Mr. Goodlatte. And those, therefore, constitutional
niceties referred to by Ms. Davis are, in fact, going right to
the very core of the United States Constitution in terms of the
ability of the legislative branch to provide a crucial check
against the enormous executive branch of our government, which
has grown and grown and grown in terms of the number of
agencies, the number of political appointments, the number of
powers that are exercised by that branch of the government to
the detriment of those in the legislative branch who want to
provide a check against the abuse of that power which one would
think, exercising a recess appointment when the Senate is not
in recess for these three members of the National Labor
Relations Board, by this president seems to be a very serious
abuse of executive power.
Do you agree with that?
Mr. Cooper. It would go to the core of the very careful
design of the framers to divide the appointment power for
vacant federal offices between the president, as a nominating
authority, and the Senate as the confirmation authority.
Chairman Kline. And the gentleman's time has expired.
Ms. Davis. Thank you very much. I would--oh, that Mrs.
Davis. Sorry, the other Susan Davis. You can understand--I am
Mrs. Davis of California. Thank you, Mr. Chairman. I
appreciate that, and certainly want to acknowledge and
recognize, you know, my namesake here, also a Berkeley grad. So
that is good to have you here.
But I wanted to actually give Ms. Davis an opportunity to
respond at this time. Because I think certainly my colleague,
there was sort of a tone there that I think is appropriate for
Ms. Davis to be able to respond to the issue of the
constitutional niceties, clarifying any way that she wanted to.
But I also wanted to just speak to the uncertainty here
that is been stated. And I am sorry that I had to leave for a
few minutes and may have missed other questions regarding that.
But certainly, employers are obviously concerned about that
issue and what moves forward.
And I want you to respond to that. Because we know, and I
am sure Ms. Davis, having, you know, advocated and worked hard
on behalf of unions and working families in this country also
sees that they don't always win the battle. There are issues
before the organization, and they have to respond to that. So
everybody wants certainty, and we know that that certainly
affects our economy today.
Ms. Davis, could you first respond. And then also on that
issue of areas in which we need to have an active organization
here in order to move forward?
Ms. Davis. Thank you very much. I am not going to take up
the chamber's time on any more of the constitutional debate. I
think we have all made our views clear. I would like to say two
things before I answer your question.
One is with respect to the picture of recess appointments
gone wild, I really want to clarify what the facts are. Which
is that this president has made 32 recess appointments,
compared to more than a hundred recently done by past
presidents. He is done so consistent with NLRB recess
appointments in the past, and he has done so solely enable to
allow two agencies to function, which I think distinguishes
this from anything.
The second point I wanted to make very quickly is on
precedent and the point that was made on precedent. Congress
entrusted the enforcement of this act to an administrative
agency rather than to the courts solely so that it could be
free of precedent, and that it could adjust itself to the
workplace and the needs of the workplace, and the imperatives
of collective bargaining.
The fact that people may not like what a board is going to
do is not enough to essentially unravel what the statute has
mandated that this board do. In terms of your ultimate
question, which is what is the impact, I want to give you one
example from my own practice.
I represented, years ago, a union, a national union, of
registered nurses. There were nurses in Salt Lake City who came
to this union--it is not a big union town--and said we would
like a union because every day we are forced to do mandatory
overtime. So there was a secret ballot election held.
Eighty percent of the members, the nurses, signed cards.
And the regional director found that every single nurse in that
unit, virtually every single nurse, was a supervisor.
Notwithstanding that it was sort of impossible to be
That decision, under these circumstances, would have
nowhere to go. There would be no board to say let us look at
this soberly and see whether, in fact, the entire unit is a
supervisor. That is one of many, many examples that,
notwithstanding the business that gets done at the region--and
there is business done at the region--that ultimately any
employer that wants to resist unionization will be able to do
so unless we have a fully-functioning board that can render
Mrs. Davis of California. Would anyone else like to respond
to that issue of uncertainty from----
Mr. Cooper. Did I just say that the best policy result
would be to have a five-member board, confirmed with the advice
and consent of the Senate, making that decision?
Mrs. Davis of California. We all, always, have a best
scenario that we would like to see, I can assure you, from
where we sit. Many, many times we don't think it has been the
best way that things have been resolved, either. So I just want
you to know that.
Mr. Cooper. I appreciate that, Congresswoman.
Mrs. Davi of California. Yes, okay. Thank you very much. My
time is up.
Chairman Kline. Thank the gentlelady.
Mr. Kelly. Thank you, Chairman. And I am sorry I have
missed most of the hearing. But I guess I come down to I have
only been here a year. And it has been a fascinating year. And
I guess we just can't wait--can either go from a campaign
slogan or to the way we actually run government.
And we can pick and choose things that we can wait for and
things that we can't wait for. I am a little bit confused.
Because I believe that this happened not too long ago. And
under section Article One, Section Five, Clause Two of the U.S.
Constitution, the Senate is vested with the power to determine
the rules of its proceedings.
Pursuant to this power, at the end of the Bush
administration Senate Majority Leader Reid frequently codified
pro forma sessions during recesses occurring within sessions of
Congress to prevent the president from making recess
appointments. November 2007, the Senate majority leader
explicitly stated that the Senate would be coming in for pro
forma sessions during the Thanksgiving holiday to prevent
Now clearly, Senator Reid considered these pro forma
sessions to be actual sessions of the Senate that broke up the
recesses. So during the final 14 months of the Bush
administration, in which the Senate broke up recesses or pro
forma sessions, the president made no recess appointments.
And I guess, Mr. Cooper, I really do, I question this.
Because it is not just a matter of trust, which it seems the
American people are having less and less trust in the the way
we run Congress and the way the administration runs this. It
goes back to another word that seems to be coming up quite
often, and it is ``hypocrisy.''
And it is defined as ``behavior of people who do things
that tell other people not to do; behavior that does not agree
with what someone claims to believe or feel.'' And I have got
to go back to, again, Mr. Reid and, at the time, Senator Obama,
really agreeing you shouldn't be making these appointments.
You shouldn't be doing this. I mean, I guess when it suits
you it feels pretty good. And when it doesn't suit you, you can
find an end run on it. So if you could just tell me just a
little bit on that. What is your feeling on that? I mean, it
was--is there really a precipice? Does it say that you
shouldn't be making these appointments, or does it?
I mean, when does it matter? I mean, when it matters to me
and I can say that it is important, or then I could say,
``Well, you know what? I guess in that situation I meant it, in
this situation I don't.'' And this idea that we just can't
wait, how long would we have had to wait to actually get these
folks vetted and approved?
Mr. Cooper. Well, Mr. Kelly, it is certainly historically
accurate, as you have recounted, that the first time that this
pro forma session method of calling the Senate into session was
ever used was under the Democratic regime and against,
essentially, President Bush's ability to make recess
President Bush, as you say, did not make any recess
appointments from that point forward. He, one must assume,
respected the Senate's judgment. And what I would suggest is
essentially binding judgment, under its own rulemaking power,
to determine for itself when it is in session and when it is
And not until January 4 has a president--and here,
President Obama, obviously, decided not to respect that, that
judgment of the Senate concerning its own proceedings. I have
testified, and I have provided the committee with my lengthy
statement on the constitutionality of this. And I simply
believe that President Obama exceeded his authorities when he
Mr. Kelly. No, and I appreciate that. And I guess, really,
we can look at the Senate as truly being the silent majority.
When it comes to anything really important, they remain very
silent. I just don't understand how somebody who could have
been so articulate in the previous administration suddenly goes
deaftone with this. And says, ``Wow, you know, I am not sure.''
But it is truly the height of hypocrisy the way these
things are working right now. In the previous administration,
don't do it, shouldn't do it, Senate has to vet them. And to
this one it is like, well, we just can't wait. We can't wait
for these folks to actually run our government. We are going to
have to just find a way to get around them.
I think it is absolutely pathetic and preposterous that we
sit back and we have to have hearings on things that, to the
average guy, looks to be, again, the height of hypocrisy to say
one thing and then do quite another. And I thank you.
And I yield back my time.
Chairman Kline. The gentleman yields back. There being no
other members to ask question, I want to thank the panel. And I
am going to yield to Mr. Miller for any closing remarks and
comments that he may have.
Mr. Miller, you are recognized.
Mr. Miller. Thank you, Mr. Chairman. And thank you again to
the witnesses and to all of the members who participated. I
think my conclusion would be, at the end of this hearing, is
that this should be in the Supreme Court. Whether a Democratic
leader or a Republican leader or a constellation of leaders
between the House and the Senate, or the 60-vote rule conspired
to deny the president the right to have and make recess
appointments should be determined by the court.
I appreciate the right of the Senate to set its own rules,
but does the right to set its own rules get to trump the
president's constitutional authority? I don't know the answer
to that question. I think I know the answer I like. I am
stunned that George Bush didn't--when you see a construct that
is admitted to, designed to prevent you from exercising your
constitutional authority, I think you may have an obligation to
challenge that, as president of the United States.
Just as the Senate or the House would challenge it
immediately if we thought the president was stepping in, when
they swarmed in here and, you know, the Department of Justice
starts swarming in here opening up members of the offices, the
bipartisans said, ``Whoa, whoa, whoa, whoa. Out of this
building,'' under the Constitution.
So these are important decisions. And you clearly had a
construct here, you had a construct. The House wasn't going to
let the Senate go into recess, and they weren't going to let
the requirement to come in every 3 days to do legislative
business that couldn't be agreed to by unanimous consent.
And you saw that it was on TV night after night in the
House, where a member would stand up on the House, just try to,
you know, strike the last word, speak for one minute, do
something. The person in the chair abandoned the chair, closed
it down. They wanted nothing to happen here.
It is interesting, and I think Ms. Davis makes a critical
point. What is different about this is there is a Consumer
Financial Protection Bureau that can't function without a
director, and this agency can't function without a quorum. And
we know the interests that are trying to keep this agency from
functioning, including a majority of the Republican caucus in
this House that sought to defund it.
They don't see value added here for the employer community
or for the employee community. So nothing gained, nothing lost,
you know. They are happy with that decision. You have Senator
from South Carolina saying he thinks, you know, if this agency
ceases to function that is progress.
But that is not the president's duty, and that is not the
president carrying out the function of his office. And that
doesn't meet the demand of where there's people trying to be
protected against the machinations of the financial community
that we have witnessed over the last several years, or workers
trying to be protected in the place, or the employer's trying
to be protected.
So this isn't about this committee. We won't resolve this
issue. We can argue this, and we damn near have, until the cows
come home. The fact of the matter, this belongs in the court
for the sake of our Constitution. And I think it is just very
important to understand. I don't know, maybe the court can
ignore all of the background.
But this table was set for a purpose, and the purpose was
if the Senate had wanted to go the House could have kept them
from going into recess. So you came up with this other
mechanism. I was told a lot of times, in law school, that just
can't do directly you can't do indirectly. So they couldn't
directly deny the right of a recess appointment so they put
together a construct to deny him the right of recess
I think this president is absolutely correct, and did a lot
of work with George Bush. I am just stunned that he didn't see
it the same way in terms of the office of the presidency. There
is a lot of things they do down there in the name of the office
of the presidency that strikes us as crazy, wrong, outrageous
and all the rest of that.
But there is a certain duty that runs with that president
beyond what most people associate with it. And I think, in this
case, he is properly challenging the--I got a lot of things he
could challenge in the Senate. I think we have unanimity over
here on that. But in this particular one, I think he is right
in terms of whether or not agencies that we have designed
legislatively not to function except under certain constructs
that they can't function, and he is prevented from putting in
place the mechanism that will allow it to function--in this
case, a director and/or members of the board.
And it is clear what is going on here. This is an absolute
assault against the National Labor Relations Board. And it will
continue, and hopefully the Supreme Court will speak sooner
than later. I hope it doesn't take 2 years, but if it does the
Constitution's worth it and we will see where it goes.
Thank you very much for your participation in the hearing.
Chairman Kline. I thank the gentleman. I want to thank the
witnesses, of course. I think there has been agreement here in
some areas. Everybody at the table, and probably everybody up
here, agrees that the president has the authority, the power,
the constitutional power and sometimes the absolute necessity
to make recess appointments.
There is clearly a difference over whether or not he had
the power to make a recess appointment when the Senate was in
pro forma session. And the testimony here today has revealed
that this is going to cause difficulties throughout our economy
as employers, employees, workers, whether unionized or not, are
struggling over whether or not decisions made by this board--
the five-member board that has now a majority of three that
were appointed while the Senate was in pro forma session.
That raises all sorts of questions. we are trying to look
at things that can help Americans get back to work, create
jobs. And it is the judgment of many of us that this has put us
in a awkward position. The reason that the Constitution
requires Senate confirmation is so that the president and the
Congress--in this case, represented by the Senate--will come
together and agree on what should constitute the makeup of a
board such as the NLRB or the cabinet.
And this president has made appointments that have been
confirmed by the Senate, cabinet secretaries, justices to the
Supreme Court, other judicial appointees, other agency
appointees. So it is possible for this president or any
president, but we are talking specifically this president, to
make an appointment and have it confirmed by the Senate.
What we had hoped would happen here, and would resolve this
uncertainty, is that the president make an appointment and then
work with the Senate to get appointees that they can actually
confirm so that you have a working quorum. Now, we are not
going to decide that. I agree with the ranking member and
others that we are not going to be able to overturn that here
in the House.
But we are concerned about the act, the National Labor
Relations Act, and the board fall under the jurisdiction of
committee. And at some point, it seems to me, we may need to
address that law. We have made some changes to the National
Labor Relations Act from this committee in this House that
haven't been acted upon in the Senate.
My thought is that at some point it is going to require a
larger overhaul. So this information is informative. This is
not a legislative hearing. I don't have such a piece of
legislation here in front of me. But clearly, there have been
difficulties. I have expressed to the ranking member, aside,
that we see this problem with the National Labor Relations
Board year after year after year. Because of the nature of it,
it swings back and forth depending upon whether or not you have
a Republican in the White House or a Democrat in the White
It is worth our taking a look at. And I think the concerns
of many of us, and the concerns raised here, are important as
we look forward to the impact going forward and things that we
may want to consider in this committee to affect that,
acknowledging that we are not going to tell the Supreme Court
or any other courts how they are going to rule on what I think
is a very, very important matter.
Again, this is a very, very learned and distinguished panel
of witnesses. I have learned new words here today. I will
probably never use them again. But, again, I want to thank you
very, very much for your attendance today. There being no
further business, this hearing is adjourned.
[Whereupon, at 12:19 p.m., the committee was adjourned.]