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Despite Recent Failures, Republicans Have A New Plan To Stop The NLRB

Though previous attempts to rein in federal labor officials with legislation have failed, House Republicans Tuesday released a draft detailing a plan to instead use the 2016 budget.

“The legislation also contains several policy provisions to improve government oversight, protect the rights of all Americans, and bolster economic growth,” the House Appropriations Committee detailed in a statement. “These provisions will rein in unnecessary regulatory overreach that ties the hands of employers and undermines job creation.”

Along with significant budget cuts, the draft includes ways to limit the activities of the National Labor Relations Board (NLRB). The two main issues critics are most concerned about is a recent redefinition of the union election process and a attempts to fundamentally change the franchise model.

“This bill reflects the values and priorities of the American taxpayer, setting us on a path that will reduce the deficit while funding programs that make meaningful differences in the lives of Americans,” Rep. Tom Cole, a Republican, said in a statement.

The new union election procedure, dubbed the “ambush election” rule by critics, drastically shortened the length of time in which a union certification election must be held from a median of 38 days to as little as 11 days. Opponents argue it doesn’t leave employees enough time to fully understand the impact of unionizing.

“Workers have little time to understand the unintended consequences of joining a union,” Heather Greenaway, spokeswoman for the Workforce Fairness Institute (WFI), told The Daily Caller News Foundation in a prepared statement. “Meanwhile, union organizers, who are trained in this regard, may have spent months canvassing before even filing their election petition.”

“The ambush elections rule tramples employer due process and free speech rights and also violates employees’ privacy rights and right to make an informed decision,” the National Retail Federation (NRF) detailed in a letter to committee members.

According to the Retail Industry Leaders Association (RILA), the new election procedure has already resulted in 95 percent of elections taking place in under two months while yielding certification in almost 70 percent of cases.

“Ambush elections limit employees’ access to information which threatens employee rights to free speech and due process,” Kelly Kolb, vice president for government affairs at RILA, said in a statement to TheDCNF. “We applaud the subcommittee for fighting back against the NLRB’s efforts to erode employer and employee rights.”

The attempts to redefine the franchise model has also garnered a lot of opposition from Republican lawmakers and business groups. Under the National Labor Relations Act, a company can be considered an employer over a company it contracts with if it has significant control over its employees.

“The current standard ensures that larger companies, which can have contracts with countless franchisees, vendors, or contractors, are protected from unnecessary involvement in labor negotiations or disputes in workplaces they do not control,” the letter from the NRF stated. “At the same time, it also enables small businesses to flourish under franchise relationships and through contracting relationships with outside vendors and service providers.”

Known as the joint-employer standard, the rule helps to resolve labor disputes when it’s not clear whether the dispute arose from decisions made by the direct employer or a larger corporation it contracts with. Cases involving McDonald’s, CNN, and Browning-Ferris Industries, however, have provided the NLRB the opportunity to revisit the standard which it now plans to drastically expand.

“Through the charges against McDonald’s and his brief in Browning Ferris Industries, NLRB General Counsel [Richard] Griffin is advocating a broader standard that would find joint employers even when there is only indirect or potential control over working conditions,” the letter argued. “These harmful and unnecessary changes would create immense uncertainty and instability in business relationships and are strongly opposed by the retail community.”

The 2016 budget is not the first attempt to stop the new rules. In March, Senate and House Republicans voted on a resolution to overturn the new election procedure. The president, however, was quick to veto the resolution and with Democrat opposition making it unlikely to reach two-thirds majority vote needed, Republicans decided to table the override vote.

Additionally, back in January, the National Federation of Independent Business (NFIB) and the Associated Builders and Contractors sued the NLRB over the change, claiming it benefited unions at the expense of employers and their workers. The hope was to overturn the rule but the lawsuit tossed by the courts.

A similar lawsuit by the U.S. Chamber of Commerce, along with the Coalition for a Democratic Workplace, National Association of Manufacturers, National Retail Federation, and Society for Human Resource Management, also filed back in January with the U.S. District Court for the District of Columbia is still pending.

Labor board officials, however, have defended their new rules by arguing they help resolve problems that currently exist in labor policy.

“I am heartened that the Board has chosen to enact amendments that will modernize the representation case process and fulfill the promise of the National Labor Relations Act,” NLRB Chairman Mark Gaston Pearce said in a statement. “Simplifying and streamlining the process will result in improvements for all parties. With these changes, the Board strives to ensure that its representation process remains a model of fairness and efficiency for all.”

“Through its franchise relationship and its use of tools, resources and technology, engages in sufficient control over its franchisees’ operations, beyond protection of the brand, to make it a putative joint employer with its franchisees, sharing liability for violations of our Act,” the NLRB argued.

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