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NLRB Recess Appointments Create Confusion and Uncertainty for Workers and Employers

The House Committee on Education and the Workforce, chaired by Rep. John Kline (R-MN), today held a hearing entitled, “The NLRB Recess Appointments: Implications for America’s Workers and Employers.” The hearing examined the constitutional concerns and legal uncertainty surrounding President Obama’s so-called recess appointments to the National Labor Relations Board (NLRB), and the impact these important issues will have on employers and workers governed by the board.

“Thanks to the president’s action, three scarcely known individuals are now empowered to dramatically transform our nation’s workforce,” said Chairman Kline. “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… noted the issues surrounding these appointments ‘create some litigation risk.’”

Charles Cooper, an attorney with decades of experience in constitutional law, noted the appointments "were driven not by any concern that the Senate was unavailable to perform its constitutional role in the appointment of government officers, but rather by the President’s determination, openly avowed, to circumvent the Senate’s role.” Cooper added, “Regardless of whether the President has sought to exceed his power for good or ill, it is Congress’ constitutional responsibility to resist him.”

The president’s decision to circumvent the constitutional appointment process has cast a shadow of suspicion over the board’s future actions, creating even greater fear and doubt among workers and employers.

Former Democrat board member Dennis Devaney described the additional legal scrutiny that all future NLRB actions could attract: "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.”

Devaney added that the legal issues hanging over the board will exist “for an extended period of time which will add costs for the parties and taxpayers.”

A former regional attorney for the NLRB, Stefan Marculewicz, echoed these concerns. “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,” he said. “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.” Marculewicz also said American small business owners will be especially harmed by the legal ambiguity surrounding the board’s future action because these entrepreneurs “often lack the resources in both time and money to pursue rights they might otherwise legitimately have.”

“The president has provided his union allies a critical lifeline to wreak further havoc on America’s workplace,” concluded Chairman Kline. “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.”

To protect workers and employers, the committee will continue to conduct aggressive oversight of the so-called recess appointments and future actions taken by the Obama board.

To read witness testimony, opening statements, or watch an archived webcast of today’s hearing, visit


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