Regulatory Agenda and Oversight
- June 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). And, even more threatening to business, the National Labor Relations Board (NLRB) is pursuing rare ule-making and an aggressive case law agenda.
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 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, the NLRB’s blatantly pro-union activism warrants attention.
One of the Board’s first actions was to issue a Request for Information (RFI) on whether union certification elections should be conducted electronically, rather than under NLRB-supervised secret ballot elections conducted in the workplace. That change would obviously expose workers to a much higher risk of harassment and intimidation.
That was only the first of many troubling Board actions. They have since issued a proposed rule that will 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 previously imposed on federal contractors. Noteworthy in the Board’s proposed rule is the requirement that if an employer communicates with its workers by means other than common-area notice postings, including email or a company intranet, this Notice must be disseminated to workers by those means as well.
And in late June, the Board published proposed new rules governing how – and how quickly – union certification elections must be conducted in a blatant attempt to push the Employee Free Choice Act through the regulatory process. The business community has been anticipating the Board’s “quickie election” regulations since the President recess-appointed union lawyer Craig Becker to the Board a year ago. NAW is participating, through CDW and individually, in an intense and broad employer-based effort to fight this new regulation; a fight which is most likely to eventually reach the courts since we fully expect the Board to proceed with its rule-makings irrespective of broad opposition to them.
Also noteworthy are several recent NLRB decisions and unfair labor practice citations resulting from employees’ posting of criticism of and/or complaints about their employers on social media sites. Specifically, under the National Labor Relations Act, employees have the right to engage in “concerted activity” in which they discuss working conditions with or on behalf of fellow employees. This protection applies to all workers whether or not they belong to a union. In their recent decisions the NLRB has ruled that posting of critical information by an employee about his/her employer is legitimate “concerted activity” and charged employers with Unfair Labor Practices for disciplining or terminating those employees.
And, in its most high-profile action to date, the NRLB’s acting general counsel filed an unfair labor practice complaint against Boeing because of the company’s decision to build the second line of its “Dreamliner” aircraft in South Carolina. (See detailed discussion of Boeing case in separate Legal Update.)
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. Congress can also address regulatory over-reach through the appropriations process, by denying agencies the funding necessary to implement specific initiatives or regulations.
Unfortunately, both the oversight and the appropriations “riders” have been somewhat disappointing to date. In some cases, members of the House offered appropriations amendments that were too broad and certain to fail. And in many cases, committees have not tackled the kind of targeted oversight that could result in the pursuit of more restrained regulatory activity by the agencies. Fortunately, NAW and a few of our colleagues have had an opportunity recently to raise this issue with key House GOP Leadership staff and, as a result, have been invited to provide the leadership with suggestions and recommendations for specific appropriations and oversight actions. We are hopeful that the new initiative will produce positive results.