Appropriations Bill Attempts to Rein in NLRB

By Allen Smith Jun 25, 2015

The National Labor Relations Board (NLRB) may have won battles so far over the “ambush” election rule, but it could lose the war if Republicans in the House of Representatives ultimately get their way. But House Democrats think they have enough votes to sustain a veto of a controversial House appropriations bill, should it reach the president’s desk.

On June 17, 2015, a House Appropriations subcommittee considered its draft fiscal year (FY) 2016 Labor, Health and Human Services, Education, and Related Agencies Appropriations bill, which proposes significant reductions in funding of the NLRB and includes riders that would limit the NLRB’s regulatory authority. The House Appropriations Committee approved the draft bill on June 24, 2015, by a vote of 30-21.

The bill proposes $200 million for the NLRB in the next fiscal year, which is $74.2 million less than last year’s level and $78 million below the president’s budget request.

The appropriations bill also provides a total of $11.7 billion for the Department of Labor—$206 million below the current fiscal year and $1.4 billion less than the president’s request.

Restrictive Riders

The bill has several riders that would stop what the House Appropriations Committee described in a press release as “the NLRB’s harmful anti-business regulations that would impose additional and excessive costs on American businesses, increase job loss, and further hinder economic growth.”

Of these riders, Section 407 addresses the ambush election rule, providing that none of the funds appropriated to the board may be used to implement or enforce any rule relating to the filing and processing of petitions pursuant to the representation of employees for the purposes of collective bargaining, including the final rule published by the NLRB on Dec. 15, 2014, and that took effect April 14, 2015.

Section 408 takes aim at the board’s attempt to change the definition of “joint employers” and would forbid the agency from changing the interpretation or application of a standard to determine whether entities are joint employers. In charges filed against McDonald’s on Dec. 19, 2014, the board maintained that the franchisees and their franchisor acted as joint employers and took retaliatory discipline against employees in response to the employees engaging in activities aimed at improving their wages and working conditions during Fight for $15 protests.

The bill also includes an amendment that prohibits funding to implement a NLRB ruling that allows micro-bargaining units to organize.

The Retail Industry Leaders Association (RILA) welcomed the appropriations bill, saying that, if enacted, it would preserve the right of workers to make informed decisions in a union election and protect the privacy of employees.

“Ambush elections limit employees’ access to information which threatens employee rights to free speech and due process,” said Kelly Kolb, vice president for RILA’s government affairs. She applauded the committee “for fighting back against the NLRB’s efforts to erode employer and employee rights.”

Another Government Shutdown?

But on June 23, 2015, the Democratic House leadership, including Minority Leader Rep. Nancy Pelosi, D-Calif., and Democratic Whip Steny Hoyer, D-Md., sent Speaker of the House Rep. John Boehner, R-Ohio, a letter opposing the Republican appropriations bills. “It is now inescapably clear that House Republicans’ sequester-perpetuating appropriations bills have no path forward and will lead only to another government shutdown,” they said.

“Last week, the Senate made clear it will not proceed with House Republicans’ defense appropriations bill or any of the unacceptably damaging appropriations bills from the House,” they added. “The president has been very clear that he will veto these appropriations bills, and House Democrats have consistently proven that we have the votes to sustain these vetoes.”

OMB Letter

And in a June 23, 2015, letter to Houses Appropriations Committee Chairman Rep. Hal Rogers, R-Ky., Shaun Donovan, director of the Office of Management and Budget, protested the “slashing [of] funding for the NLRB to below its FY 2000 level, almost 30 percent below the president’s budget, crippling its ability to protect workers from unlawful treatment on the job for taking action to improve their working conditions. The board would be forced to reduce its staffing levels by over one-third, hampering the board’s ability to investigate and litigate unfair labor practices and conduct secret ballot elections around the nation.”

Donovan added, “The bill also impedes the Department of Labor’s efficient implementation of an initiative that will ensure that federal contractors maintain safe workplaces and pay fair wages to their employees, helping to create a level playing field for the overwhelming majority of contractors who do follow the law.” He concluded by saying, “The administration believes that the Congress should consider appropriations bills free of unrelated ideological provisions. The inclusion of these provisions threatens to undermine an orderly appropriations process.”

Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.


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