By Tim Devaney - 08/06/14 06:00 AM EDT
GOP lawmakers are planning to attack the National Labor Relations Board if they take back the Senate this fall.
With majorities in the House and Senate, Republicans say they would push back against NLRB rules that have made it easier for unions to speed up their elections and organize multiple departments within a single company, among other things.
And Sen. Lamar Alexander (Tenn.), the top Republican on the Senate Labor Committee, is using the issue as part of his campaign theme ahead of his Thursday primary.
“The Tennesseans I talk with are tired of Washington bureaucrats telling them how to live their lives and run their businesses,” Alexander said. “The NLRB is pursuing some of the most intrusive and misguided policies under this administration.”
When Congress returns from recess, Alexander said he plans to introduce a bill that would overhaul the NLRB and “make it more of an umpire than an advocate.”
Even with a Senate majority, Republicans are unlikely to be able to move major legislation through a narrowly divided Senate.
But they may not need to pass legislation in order to tinker with the NLRB, according to Michael Lotito, an employment and labor attorney and co-chairman of the conservative Workplace Policy Institute.
Lotito says Republicans could also use the appropriations process to slow down the NLRB, even if President Obama tries to block their legislation.
“So you could have an appropriations rider that could prohibit the NLRB from attempting to implement its ambush election proposal,” Lotito explained.
Backers of the NLRB aren’t too worried about the GOP chest-thumping.
“Obviously, what the NLRB has to do is continue to do the business in front of it,” said Wilma Liebman, a former NLRB chairman who is a Democrat. “The board is no stranger to controversy or political opposition, so they know how to deal with it.”
Lawrence Mishel, president of the liberal Economic Policy Institute, said he would expect Senate Republicans to “harass” the NLRB much in the same way that House Republicans do now, if the party gains control of the Senate in November.
He also suggested it will be difficult for Obama to win confirmation of new board members if the Senate goes Republican.
“I think what they really want to do is shut down the inner workings of the NLRB and keep them from making rulings and doing their job,” Mishel said.
Democratic board member Nancy J. Schiffer’s term expires in mid-December, and a GOP-controlled Senate would likely block any replacement Obama nominates, giving Republicans on the labor board more sway to influence decisions made after her term expires.
Schiffer’s exit would leave the board with two Republican appointees and two Democratic appointees.
The board is in the process of reissuing hundreds of decisions invalidated by a Supreme Court ruling. The Supreme Court ruled that Obama did not have the power to make recess appointments to the NLRB, meaning decisions issued by the board that included the recess appointees were also invalidated.
Senate Democrats later changed the upper chamber’s filibuster rules, and new members of the NLRB were confirmed.
If Republicans have a Senate majority in January, the NLRB’s current members would only have between now and the end of the year to review those cases, said Marshall Babson, a former Democrat board member of the NLRB.
Republicans hope to turn back several NLRB rules if they win the majority.
One example is a rule, which must still be finalized, that speeds up union elections to occur as little as 10 days after a petition is filed. Business groups call it the “ambush election” rule and say it would give employers too little time to discuss the decision to unionize with their workers.
The NLRB’s Democrats say the rule is aimed at preventing companies from intimidating employees against joining a union.
It is one of the NLRB’s most controversial rules and one of the first things Republicans say they would look to strike down if they gain control of the Senate.
“I think there’s a lot of interest in pushing back on these things,” said a Republican aide on the Senate Labor Committee. “If they finalize the ambush election rule, there would be pushback here in the Senate on that.”
Republicans and business groups have also expressed disappointment with recent NLRB decisions to allow employees to organize multiple “micro-unions” within a single company.
Just last month, the NLRB ruled a group of cosmetics and fragrance workers at a Macy’s store in Massachusetts could organize, even without the consent of the rest of the store’s employees.
This would create the potential for employees to negotiate with multiple collective bargaining units represented by different unions, labor experts say.
Republicans have called it labor’s version of “gerrymandering,” because it allows unions to pick the employees who are most likely to say yes and ignore the others.
The NLRB laid the groundwork for such decisions in a 2011 case known as Specialty Healthcare, in which the NLRB ruled that a group of nurse assistants could form their own union without including other employees at the company.
“We would want to look at legislation to make sure bargaining units are appropriately sized in response to the NLRB’s micro-union decision,” the Republican aide said.
Another issue Senate Republicans say they would look at is the NLRB’s new joint employer standard, which allows franchise employees to sue the corporate owners of a company in addition to their franchise bosses.
Republicans were critical of the NLRB’s decision last week to allow this at McDonald’s. They say franchises should be treated as independent companies.
“The joint employer standard is something the Senate would want to push back against as well,” the aide said.