Regulatory Agenda and Oversight
- April 2011
As we’ve noted in all our recent staff reports, the real threat facing business in the last two years has not been legislation, but regulation. The Obama Administration’s executive departments and agencies have moved aggressively to reverse the free market policies of the previous Administration, and to impose burdensome, costly and time consuming regulations on business at all levels and in all industries. Virtually all of the Federal Departments and agencies are promulgating new rules and regulations, many of them spawned by the banking reform and health care reform bills passed by Congress last year.
(Information on the regulations in the health care area can be found in that separate staff report.) But the most activist agencies are OHSA, EBSA, W&D, OFCCP, FLSA, OLMS…the whole alphabet soup of regulatory agencies within the Department of Labor (DoL).
Not only are the labor-related regulations pervasive, they are among the most troubling because of the clear pro-union bias of DoL and the National Labor Relations Board (NLRB). For example, Secretary of Labor Hilda Solice has said that “Employment in a unionized workplace has been associated with higher wages, better health and retirement benefits, and quality training... Thus, many of the Department's outcome goals are furthered by high rates of union membership.” DoL’s strategic plan states that “many of the Department's outcome goals are furthered by high rates of union membership,” and that “Declines in Unionization” are a negative influence on the department achieving its goals.
In response to the regulatory threat in the labor area, the Coalition for a Democratic Workplace – the business coalition organized to oppose card check legislation which NAW helps manage – re-defined its mission to focus on the regulations which threaten employers’ ability to manage their own places of business. As part of that reorganization, the coalition suspended its communications and media effort and retained labor counsel to follow the regulatory agenda and coordinate the filing of comments and amicus briefs in response to agency rulemaking. NAW and many of our member associations have lent their names to briefs and comments, and we will continue to do so throughout the next Congress.
The list of proposed regulations is far too long for inclusion in these reports, but the Labor Department released its Fall Semiannual Agenda of Regulations in late December, which you can access here for a list of their almost-100 rulemakings:
While the DoL regulations are too numerous to itemize in this report, it is noteworthy that the NLRB has also taken an activist role in promoting pro-union policies. For example, they issued a “Request for Information” on whether union certification elections should be conducted electronically, rather than under NLRB-supervision in the workplace; a change which would, obviously, expose workers to a much higher risk of harassment and intimidation.
The Board has also issued a proposed rule to require all regulated entities – virtually all businesses – to post the union-biased “Notice of Employee Rights Under the National Labor Relations Act” that the Department of Labor earlier required federal contractors to post.
There are also a number of cases pending before the Board in which we anticipate they will issue decisions detrimental to business and overtly helpful to labor unions. In one case, Roundy’s, the Board is considering whether to require that if a business makes its property available to any third party (i.e., the Salvation Army bell ringers or Girl Scouts selling cookies), they must also make their property available to non-employee union organizers – even if their purpose is to encourage potential customers to boycott the company.
In another case, Specialty Health Care, they could well change the manner in which collective bargaining units are determined, for the purpose of allowing a union to organize multiple bargaining units within a workplace.
NAW has joined CDW amicus briefs in both of these cases, as well as filing comments in several other rulemakings, but it is very possible that legal action will have to be pursued challenging some of the likely rules and decisions.
The one serious obstacle to the Administration’s regulatory agenda comes as a direct result of Republicans recapturing the majority in the House of Representatives: the right and ability of the new GOP committee chairmen to conduct oversight of the federal departments and agencies.
And Speaker Boehner and his leadership team have promised to use that oversight authority thoroughly, thoughtfully and carefully. Specifically, the Speaker has said that the GOP chairman will not be pursuing “gotcha” oversight for the political purposes or to embarrass individuals, but will seek to ensure that the government agencies are spending the taxpayers’ money wisely and carefully.
A December 18th article in National Journal describes the GOP’s careful planning of their oversight efforts:
“House Republicans already have their battle plans drawn up. Boehner will coordinate all long-term committee oversight planning and strategy, deciding which issues to investigate, which committees to put in charge, and how to package oversight findings to build momentum for bills that Republicans want to pass. Incoming Majority Leader Eric Cantor of VA will handle day-to-day management of all committees conducting oversight or developing legislation to repeal or excise certain parts of health care, financial reform, or the stimulus. According to senior House aids, Boehner and Cantor have ordered up a 24/7 war-room model where attacks on administration policy are developed by chosen committees, relayed to rank-and-file members (with high visibility roles envisaged for members of the hard-charging freshman class), and, eventually, coordinated with GOP governors.”
We will be working closely with the committee chairmen to assist in their review of overzealous regulators and, when appropriate, to support legislative efforts to deny funding for the implementation of objectionable regulations.