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Senate Republicans introduce companion bill barring NLRB from issuing decisions with “quorum of one”

Lamar Alexander (R-Tenn), Ranking Member of the Senate HELP Committee, introduced a measure on Friday, April 26, that would prohibit the NLRB as currently comprised from taking any action that would require a quorum. The legislation, the Preventing Greater Uncertainty in Labor-Management Relations Act, is an identical companion bill to H.R. 1120, which passed the House on April 12. The Senate version has 11 Republican cosponsors.

The legislation would prohibit the NLRB from taking any action that requires a three-member quorum until the Board members constituting the quorum have been confirmed by the Senate, the Supreme Court issues a decision on the constitutionality of the appointments to the Board made in January 2012, or the first session of the 113th Congress is adjourned. The bill also prohibits the Board from enforcing any action taken after January 2012 or appointing any agency personnel that requires a quorum to do so. It also would ensure any action involving the recess appointees is reviewed and approved by a future Board that has been constitutionally appointed. (The legislation would not prevent the NLRB regional offices from accepting and processing unfair labor practice charges filed by an injured party, however.)

In January, the D.C. Circuit ruled in Noel Canning v NLRB that the recess appointments of two members to the NLRB were unconstitutional, meaning only one of the current sitting Board members has been confirmed by the Senate. Last week, the Obama administration formally petitioned the Supreme Court to review Noel Canning; the High Court is expected to grant certiorari in light of the constitutional issues at stake, but it’s unlikely that it will hear the matter during the current term.

In the meantime, the Republican-backed measures would end “the stream of decisions and regulations” issued by an invalid “quorum of one,” according to Alexander. Since Noel Canning, the Board has issued 44 published decisions and 113 unpublished decisions and orders. “Allowing these individuals to issue invalid decisions and regulations will only threaten the rights of American workers, the very people the [B]oard is intended to protect,” Alexander contends.

“The NLRB has traditionally made major policy changes and interpretations only with the affirmative votes of at least three board members, typically from a full five-member [B]oard,” he added. “Yet, even with unconstitutionally recess-appointed board members, the Board continues to issue decisions overruling well-established precedent and replacing it with new policy that is favored by the administration’s supporters.”

In March, Alexander had introduced a budget amendment to defund decisions and regulations issued by the “unconstitutional” quorum. Previously, in February, he called on Sharon Block and Richard Griffin, the members whose recess appointments were invalidated by the appeals court, to leave the Board.

Source: WKL&B Editorial Staff