Congress Reconvenes – Controversy Ensues over Recess Appointments

Representative Steve LaTourette (R-OH) formally closed the first session of the 112th Congress just before noon on Tuesday, January 3, and began the second session at noon. The 20th Amendment to the Constitution requires that Congress must meet at least once each year, at noon, on the third day of January. The Second Session of the 112th Congress formally convened on January 17, 2012.  This election year begins with a display of more partisan politics and endless bickering while serious problems go unresolved.

In January, a huge dispute arose over some recess appointments made by President Obama, and the debate over the question as to what actually constitutes a congressional recess rages on. Starting before last Memorial Day weekend, the House of Representatives would not agree to recess and began holding “pro forma” sessions after a group of Republican legislators said they wanted to block the President from making any recess appointments, specifically the appointment to the position of Director of the Consumer Finance Protection Bureau. Under the Constitution, neither the House nor the Senate can recess for more than three days unless both agree. The House of Representatives did not give that consent and instead held pro forma sessions every three days, forcing the Senate to do the same. Both chambers have gaveled themselves in and out for a few seconds at least every fourth day in order to maintain a technical session.

On January 4, under the Recess Appointment Clause of the U.S. Constitution, President Obama claimed authority to appoint Richard Cordray as Director of the Consumer Finance Protection Bureau (CFPB), and also appointed three new members to the vacant positions on the National Labor Relations Board (NLRB). Senate Republicans disputed the appointments stating that Obama had “arrogantly circumvented the American people” with these appointments and it was expected that a legal challenge would ensue. On January 6, the Department of Justice Office of Legal Counsel ruled that the President did in fact have the discretion to conclude that the Senate was unavailable to perform its advise-and-consent function, allowing him to exercise his power to make recess appointments. Both the White House and the Justice Department have argued that the recent pro-forma sessions of the U.S. Senate did not constitute a legitimate session that could block the appointments.

All of this has given rise to the question of what exactly constitutes a congressional recess. A tug-of-war has ensued, with the executive branch arguing that the President had the authority to make the appointments because the Senate was not in perpetual meeting, and congressional Republicans arguing that the President has overstepped his bounds because the chamber was not technically on recess. The Recess Appointment Clause in the U.S. Constitution expressly gives the President the “Power to fill up all vacancies that may happen during the Recess of the Senate, by granting commission which shall expire at the end of their next session.” But nowhere in the Constitution is there a definition of what actually constitutes a recess. Lawyers for this White House and for past administrations have argued that the use of “pro forma” sessions is merely a legislative sham designed to rob the executive branch of its powers. Over the last 100+ years, there have been other differing legal arguments regarding the interpretation of the Recess Appointment Clause and what actually constitutes a recess. Although the courts do not like to get in the middle of disputes between the other two branches, it may actually be the Judicial Branch that will have the final word on whether or not the Senate was in recess when the appointments were made by President Obama; however this could take some time. In the meantime, the debate over whether or not the appointments are valid continues and leaves the door open for future court challenges regarding the decisions rendered by both the CFPB and the NLRB.

The seating of the three new members on the NLRB is an important move for the rights of American workers as this action will allow the board, which has five seats, to continue to function. The board had shrunk to only two members when the term of a previous Democratic recess appointee expired on January 3, 2012. The board is not allowed to make decisions with less than three members. The new members are Department of Labor Attorney Sharon Block, labor lawyer Richard Griffin, and NLRB counsel Terence Flynn.

The War on Workers Wages on with Passage of FAA Reauthorization Bill


Anti-worker legislators and some of the nation’s most powerful airlines had it their way on February 5 with the passage of the long-awaited Federal Aviation Administration (FAA) reauthorization bill by 75 to 20. The bill, entitled H.R. 658, the FAA Air Transportation Modernization and Safety Improvement Act, sponsored by Rep. John Mica (R-FL), which modernizes air traffic control systems and funds the FAA through 2014 has been fought over for the past four years and led to a partial shutdown of the FAA last summer due to the anti-union language that would have changed the way union elections are handled for airline and railroad workers. That provision would have repealed the 2010 ruling of the National Mediation Board that made union representation elections among airline and railroad workers covered by the Railway Labor Act the same as all other elections in America… where the majority of those who vote make the decision as to whether or not there will be union representation. Prior to that rule change, the NMB rules governing representation elections in the railroad and aviation industries counted workers who did not vote in the elections as having voted against representation.

While it was still in committee, two amendments were offered, one by Steve LaTourette (R-OH) and one by Jerry Costello (D-IL), to strip the anti-union language from the bill. However, both amendments were defeated and the bill passed out of the House on April 1, 2011, and was referred to a conference committee. Although the measure outlined above, was stripped in the conference committee, it was unfortunately replaced by other anti-union language that is designed to weaken the Railway Labor Act and to end the discretion of the National Mediation Board (NMB) to decide when a representation election will be held. The newly added provision will increase the number of signatures necessary to compel an election for an unrepresented bargaining unit from 35 percent to 50 percent. These changes will, in fact, result in a higher threshold to hold a representation election than for a union to prevail in the elections. The changes also promote legal challenges by railroads and make it extremely difficult for unions to continue to exist on smaller carriers that are merged with a large, non-union carrier.

In addition, this bill changes the way a “runoff” is handled in a representation election. Currently, if two unions are on an election ballot and between them they garner more than a majority of votes, a runoff election between those two unions is held. Provisions of this bill state that a runoff between the top two vote-getters will include the category of “no union,” even though a majority of the voters voted in favor of union representation. Example: One union gets 40% of the votes, one union gets 29%, and 31% of the votes are for “no union.” The runoff will be between the union that got 40% of the votes and the category of “no union” because the percentage who voted “no union” was higher than the percentage who voted for the other union. This gives management two opportunities to defeat unionization of their workforce.

Ten rail labor unions, including the BLET and Brotherhood of Maintenance of Way Employees Division joined forces with the Teamsters and other transportation unions to defend rail workers from these provisions designed to weaken their rights to be represented by a union. In a joint statement issued on January 30, the unions urged the Senate to delete the provisions of the bill that would amend the Railway Labor Act and to pass a clean FAA Reauthorization bill. The letter states that “Rewarding the House Republican Leadership’s desire to rewrite decades of long standing labor law in a flash by inserting an unrelated and controversial labor provision in a much needed aviation and security  bill, without notice, hearing, or debate, sets an extremely dangerous precedent.” (To see the entire letter, go to .)

Senator Jay Rockefeller (D-WV) was amongst the Democrats who voted in favor of the bill and praised it as a good compromise and a vital step forward for the country’s air traffic control system. Many of his Democratic colleagues, however, sided with the unions, agreeing that Congress was caving in to a few powerful airlines. Senator Tom Harkin (D-IA) was one of the 157 House Democrats and 15 Democratic Senators who stood up for collective bargaining. Senator Harkin stated that he was taking a stand against “a few of these powerful companies who don’t want their workers to have representation” because someday “they might have to put a few additional dollars in their workers’ pockets.” The bill now goes to President Obama for his signature. BLET National President Dennis Pierce today, February 7, 2012, has sent a letter, delivered electronically, to the White House urging President Obama to veto the bill. A copy of the letter is available at

With this being an election year, BLET and BLET Auxiliary members are urged to take note of which legislators in Congress support our issues and which do not. To see how your Representative voted on this bill on April 1, 2011, go to To see how your Senators voted on February 6, go to

House Surface Transportation Reauthorization Bill

HR 7, The American Energy and Infrastructure Jobs Act of 2012, was introduced by Rep. John Mica (R-FL) on January 31 and referred to the House Transportation and Infrastructure Committee. This bill contained language that pushed for allowing heavier trucks on our nation’s highways. The proposed bill would allow freight trucks with six axles to weigh up to 97,000 pounds, an increase from the current limit of 80,000 pounds. Lawmakers on both sides of the aisle argued that the increase would make roads less safe, not to mention the damage these heavier trucks would create on our already crumbling infrastructure. When the bill was marked up on February 2, a bipartisan amendment was submitted by Reps. Lou Barletta (R-PA) and Jerry Costello (D-IL) to require a study before an increase in the limit on truck weight. The amendment was approved 33-20. Thanks to everyone who contacted their representatives asking them to vote no on any attempts to pass legislation that would allow bigger trucks.

There are, however, other provisions in this bill that are detrimental for rail employees. One is a provision that will cause nearly 15% of Amtrak employees to lose their jobs by privatizing several areas of Amtrak operations, handing over the food and beverage service and state-supported services that receive federal subsidies to private contractors. The bill also calls for significant cuts to Amtrak’s operating funding in FY 2012 and 2013. In 2012, Amtrak funding would be decreased from $616 million to $466 million, and in 2013, it would be reduced from $631 million to $463 million (nearly one-third). This is yet another effort by the House Transportation and Infrastructure Committee and its chairman, John Mica, to privatize and dismantle Amtrak.

Another provision has to do with Positive Train Control (PTC). As you may recall, the Rail Safety Improvement Act of 2008 mandated that PTC be installed on the nation’s railroads by 2015 and the Federal Railroad Administration (FRA) followed with a regulation ordering that the technology be implemented by December 31, 2015, on a vast expanse of track used to transport passengers and certain hazardous materials. A provision of  H.R.7 calls for delaying the implementation of PTC systems by five years, pushing back the date of implementation to December 31, 2020, for commuter systems and on or after December 31, 2020, for freight railroads. It also gives the freight railroads the ability to avoid implementing PTC altogether on lines carrying poisonous-by-inhalation or toxic-by-inhalation materials by allowing for undefined “alternative” strategies instead. However, the legislation offers no criteria as to how this safeguarding would occur.

The legislation also contains language designed to weaken the Federal Railroad Administration by making it more difficult for important safety issues to be addressed in the regulatory process. It would make all regulations issued by the Department of Transportation, including the FRA, subject to much stricter scrutiny than what is currently in effect. New regulations would have to be based on an undefined standard of evidence, thereby tying the hands of the FRA, making it difficult, if not impossible, to create regulations that are good policy.

As BLET National Legislative Representative John Tolman stated, the legislation is “through and through a gift to corporate special interests.” Please urge your congressional representatives to defeat this damaging legislation.

Railroad Retirement and the IRS


Each January the Railroad Retirement Board (RRB) publishes a series of questions and answers to help beneficiaries with the tax statements that are issued by the RRB and the tax withholding from their benefits. For more information, go to: or contact an office of the RRB.