Lawmakers are taking another approach in an attempt to curb recent agency decisions and rulemaking considered unduly burdensome for businesses. On Thursday, Rep. Dennis Rehberg (R-MT) introduced (H.R. 3070), a bill that would appropriate funds for the Departments of Labor (DOL), National Labor Relations Board (NLRB), and other related agencies for fiscal year 2012. This nearly 150-page bill contains many provisions that not only reduce the amount these agencies would receive in comparison to prior years, but also would place a number of conditions on the receipt of such funds. In essence, the legislation would prevent the agencies from using appropriations funds to pursue and/or enforce many controversial items on their regulatory agendas.
Several sections of the appropriations bill seek to rein in the NLRB and the DOL’s Office of Labor Management Standards (OLMS). Many provisions would deny these agencies funding in order to prevent certain regulatory actions from going forward. Others would effectively reverse recent contentious NLRB decisions. Notable sections of the bill include the following:
- Electronic Voting. Section 404 would prohibit the NLRB from using appropriations funds to issue any new administrative directive or regulation that would provide employees “any means of voting through any electronic means that enables off-site, remote, or otherwise absentee voting in an election to determine a representative for the purposes of collective bargaining.”
- Expedited Elections. Section 405 would deny the NLRB funding to further develop, implement and enforce the proposed rule that would drastically change union representation election procedures.
- Notice Posting Rule. Section 406 would similarly deny funds to implement and enforce the recently-finalized rule requiring most employers to post a notice informing employees of their rights under the National Labor Relations Act.
- Appropriate Bargaining Unit. Section 402 would prevent the agency from using appropriations funds to “implement, create, apply, or enforce through prosecution, adjudication, rulemaking, or the issuing of any interpretation, opinion, certification, decision, or policy, any standard for initial bargaining unit determinations that conflicts with the standard articulated in the majority opinion in Wheeling Island Gaming Inc. and United Food and Commercial Workers International Union, Local 23, 355 NLRB 127 (August 27, 2010).” The Board’s recent decision in Specialty Healthcare deviates from such past precedent and instead adopts a controversial new standard for appropriate bargaining unit determination.
- Recognition Bar. By the same token, Section 403 stipulates that no appropriations funds may be used “to implement, create, apply, or enforce through prosecution, adjudication, rulemaking, or the issuing of any interpretation, opinion, certification, decision, or policy, any standard for secret-ballot elections that conflicts with the standard articulated in the majority opinion in Dana Corp., 351 NLRB 434 (2007).” Under Dana Corp., employees were given 45 days to request a secret ballot election after the employer voluntarily recognized the union as the exclusive bargaining representative. The Board’s recent decision in Lamons Gasket Company changed this timeframe by holding that a “reasonable period” of time – at least six months, the Board suggests – must pass before an employer’s voluntary recognition of a union can be challenged.
- Project Labor Agreements. Section 111 would prevent the DOL from using any appropriations funds to implement, administer, or enforce the final regulations implementing Executive Order 13502: Use of Project Labor Agreements for Federal Construction Projects.
- Persuader Regulations. Section 114 would prevent funds from being used to promulgate or implement a rule that would amend current regulations governing employer and labor relations consultant reporting under the Labor-Management Reporting Disclosure Act, including the already proposed “persuader” regulation issued by the OLMS in June.
Section 123 of the measure would prevent the DOL from initiating, administering, promulgating, or enforcing any significant regulatory action “unless the Committees on Appropriations of the House of Representatives and Senate have been notified at least 30 days prior to the issuance of such action.” Section 112 would deny funding to administer, implement, or promote the DOL’s ‘‘Bridge to Justice’’ program or any similar attorney referral program that refers individuals with complaints relating to employment violations to private attorneys.
Wage and Hour
- Right to Know Regulation. According to the WHD’s regulatory agenda, the agency intends to issue a proposed rule – otherwise known as the “right to know” regulation – that would update the recordkeeping regulations under the Fair Labor Standards Act (FLSA) in order to “enhance the transparency and disclosure to workers of their status as the employer's employee or some other status, such as an independent contractor, and if an employee, how their pay is computed.” Section 113 of the appropriations bill would prevent the agency from using funds to further develop/implement this proposal.
- Injury and Illness Prevention Program. Section 120 prohibits the Occupational Safety and Health Administration from using appropriations funds to “continue the development of or to promulgate, administer, enforce, or otherwise implement” an Injury and Illness Prevention Program regulation. While OSHA has not yet set a specific date for publishing the proposed standard, this item was listed in the agency’s regulatory agenda. During a web chat to discuss OSHA’s agenda, OSHA’s Deputy Assistant Secretary Jordan Barab said that such a standard “will require employers to develop a program that will help them address their health and safety hazards in a systematic proactive way.”
- Musculoskeletal Disorders. Similarly, Section 119 of the bill would prevent OSHA from using funds to develop, implement or enforce a rule that would add a column for Musculoskeletal Disorders (MSD) to the Occupational Injury and Illness Recording and Reporting Requirements form (Log 300).
- Section 118 would deny funding for the continued development, promulgation, administration or enforcement of the proposed rule: Wage Methodology for the Temporary Non-agricultural Employment H-2B Program. Similarly, Section 117 would prevent any appropriations funds from being used to pay the salaries and expenses of DOL staff “to require an H-2A employer to pay an H-2A worker a wage that is not the prevailing hourly wage in the occupation for which the employer has petitioned for workers.”
At this time, it is uncertain which, if any, of the above provisions will be included in the final appropriations bill. Most of these funding limitations will inevitably face strong opposition in the Senate.