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Capitol Hill Update

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Last month, President Obama appointed three new members to the National Labor Relations Board (NLRB) bypassing the Senate confirmation process. These three members were given recess appointments to the NLRB, despite the fact that the Senate was not in recess.

The NLRB appointments raise a series of constitutional issues. This was the first time in U.S. history that a sitting president had appointed executive officials during a time when the Senate was technically in session. And HR professionals are keenly aware that the NLRB drew heavy criticism from GOP lawmakers and the business community for its actions in 2011, during which the Board issued final rules on its employee rights posting notice and "quick elections”, along with several controversial case decisions, including Specialty Healthcare.

On Tuesday, Feb. 7, the U.S. House Committee on Education and the Workforce, held a hearing to examine the constitutionality of the Obama Administration’s three recess appointments to the NLRB. The Committee discussed the president’s authority to fill vacancies through recess appointments and Congress’ ability to prevent recess appointments by adjourning more than three days without the consent of the other chamber.  Committee Chairman John Kline (R-MN) had already ushered his bill, the SHRM-supported Workforce Democracy and Fairness Act (H.R. 3094), through the House on November 30, 2011. In brief, the bill would nullify both the NLRB’s Specialty Healthcare decision and its quick elections rule.

The NLRB’s quick elections rule has also drawn the attention of key Senate leaders. On Jan. 23, Sen. Mike Enzi (R-WY), a former HR professional and ranking Republican on the Senate Health, Education, Labor and Pensions Committee (pictured above - center), sent a letter to all senators asking them to support his resolution to nullify the NLRB’s final rule on quick elections. The resolution will be based on the Congressional Review Act of 1996 (CRA), which allows the Senate and House to consider a joint resolution of disapproval that features the full force of law to stop a federal agency from implementing a rule or regulation. Such a CRA resolution needs only a simple majority (51 votes) to pass the Senate if acted upon within 60 days. If the CRA resolution passes both the House and Senate and is vetoed by President Obama, both chambers would need to muster a two-thirds majority to override the President’s veto for the rule to be repealed.


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