By IWLA Washington Representative Pat O’Connor
Appropriations Committees in the U.S. House and Senate advanced their Fiscal Year 2106 Labor-HHS spending bills this week. These bills each contain policy riders that would effectively halt a number of the administration’s controversial regulatory efforts.
Approved by the full Appropriations Committee June 24, the House spending bill contains riders that would prevent any funds from being used to, among other things:
- alter the test for determining joint-employer status under the National Labor Relations Act;
- block the implementation of the National Labor Relations Board’s (NLRB) ambush election rule; and
- prevent union agents from accompanying U.S. Occupational Safety & Health Administration (OSHA) investigators to workplace safety inspections of non-union worksites.
During the markup session, the committee also approved by voice vote an amendment offered by Rep. Andy Harris (R-Md.) that would effectively block the NLRB from recognizing so-called “micro” bargaining units in the wake of the 2011 Specialty Healthcare decision. This decision changed the standard for determining the appropriateness of bargaining units. Under the new standard, if a union’s petitioned-for unit includes a clearly identifiable group of employees, the board is to presume the unit is appropriate.
In order to include additional employees, an employer must now show that the additional group shares an “overwhelming” community of interest with those in the petitioned-for unit. The looser standard for certifying units has made it easier for unions to organize smaller factions of the workforce. During the markup session, Rep. Harris claimed the NLRB decision has resulted in a “fracturing” of the workforce.
On June 25, the full U.S. Senate Appropriations Committee voted 16-14 in favor of legislation containing the same prohibitions. According to a summary released by the Senate Appropriations Committee, the riders are intended to “to restrain regulatory overreach by the administration.”
One issue that was not addressed in either bill is the Department of Labor’s Persuader rulemaking, a rule that would essentially eliminate the “advice” exemption by requiring attorneys who speak with management about unionization to file a disclosure report.
While these riders are certainly welcome news for business, there is no guarantee they will make it into law. What we’re most likely to see is selected provisions from the Labor-HHS funding bills incorporated into an omnibus appropriations bill, rather than considered as a standalone bill.