Bloomberg: House Committee Weighs Rollback of Federal Labor Rules

February 15, 2017

A House subcommittee weighed the potential for legislation to undo some National Labor Relations Board actions under the Obama administration, including “ambush” union election rules and an expanded joint employer liability standard.

“Joint employer is certainly one of the regulatory outrages of the last several years,” witness Reem Aloul, owner of BrightStar Care in Arlington, Va., who spoke on behalf of the Coalition to Save Local Business, told the subcommittee Feb. 14. “The government issued a case decision, not even a regulation or formal rulemaking, that deeply changes the definition of what is an ‘employer.’ This uncertainty disrupts business relationships, and the government clearly doesn’t care.”

The hearing, titled “Restoring Balance and Fairness to the National Labor Relations Board,” was held by the Education and the Workforce Subcommittee on Health, Employment, Labor, and Pensions. Lawmakers fielded testimony from both employers and union advocates. The two-hour hearing sets the stage for an ongoing debate over labor laws that could be offered in this new Congress.

The subcommittee hearing comes as the Republican-controlled Congress and White House look to repeal or replace a wide range of Obama administration’s policies.

GOP Seeking to Reverse Board’s ‘Overreach.’

Republican lawmakers told Bloomberg BNA they want to address overreach by the NLRB, which could happen through a combination of legislation, executive orders and new rules. Targets include an NLRB rule to streamline the union representation process and the board’s decision to expand joint employer liability in Browning-Ferris Industries of California, Inc, which is currently pending on appeal before the D.C. Circuit. The board’s ruling in that case indicated that a business may be considered a joint employer under the NLRA if it has the right to control workers, even indirectly.

“We have repeatedly seen the Obama NLRB overturn long-standing labor policies and put in place new policies designed to empower special interests,” subcommittee Chairman Tim Walberg (R-Mich.) said during the hearing. “It’s why the board adopted an ambush election rule that chills employer free speech, cripples worker free choice, and jeopardizes the privacy of workers and their families.”

Some Democrats on the subcommittee defended actions of the former administration, calling the hearing the Republican’s latest effort to weaken labor unions.

“This really is, to be honest, nothing more than a continued attack on unions,” Marcia Fudge (D-Ohio) said. “It is an attempt to eviscerate all the workers’ rights and to give all rights and power to employers.”

The panel’s ranking Democrat, Rep. Gregorio Kilili Camacho Sablan (CNMI), suggested changes to the National Labor Relations Act that could “address the needs of working Americans whose pay has been largely stagnant over the past several decades, despite rising productivity.”

“Another choice is to go down the same path we have been following for the past three sessions of Congress, when there have been 25 hearings and markups focused exclusively on weakening the National Labor Relations Act,” he said. “Bills have been passed which give employers greater power to block union organizing efforts. Other bills actually blocked the ability of the NLRB to function.”

Groups Urge Repeal of Joint-Employer

Aloul was one four witnesses who spoke during the hearing. The meeting occurred the same day more than 50 trade groups sent a letter to committee leaders, urging them to repeal the joint-employer standard set by the board.

“Businesses of all sizes are now perpetually exposed to unlimited and unpredictable joint employment liability that is disrupting many business formats,” the groups wrote. “While the change in Administration has generated a corresponding hope that the NLRB will eventually restore the traditional, common sense standard of joint employment liability based on ‘direct control,’ we are calling on Congress to enact a permanent legislative solution to joint employer that provides certainty to small and large businesses and promotes economic growth and job creation.”

Many of the panelists also urged that vacant positions on the NLRB be filled and that Congress take a look at the impacts of the union representation process.

Susan Davis, a union attorney and partner at firm Cohen, Weiss and Simon, however, defended the changes to the representation election process as “common sense changes.”

“While the employer community has charged the Board with creating ‘ambush’ or ‘quickie’ elections, in reality, the election rule makes modest, common-sense changes to the Board’s representation procedures to eliminate delays that had plagued the election process for decades,” she said. “The new rule reduces unnecessary litigation, streamlines hearings, and modernizes the procedures.”

To contact the reporter on this story: Tyrone Richardson in Washington at trichardson@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Christopher Opfer at copfer@bna.com

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