On July 19, the U.S. House of Representatives Appropriations Committee approved the Labor, Health and Human Services, and Education funding bill for fiscal year 2018. As passed, the bill would decrease discretionary spending at the Department of Labor and the National Labor Relations Board (NLRB) by approximately 11 percent and 9 percent respectively.
The committee also included several policy “riders” that would prevent the NLRB from taking certain actions.
One amendment adds a provision prohibiting the NLRB from enforcing the interpretation regarding “micro unions” as articulated in its controversial Specialty Healthcare decision. Specialty Healthcare allows labor unions to cherry pick small bargaining units for representation, regardless of the will of a majority of all employees in a workplace.
The bill also includes a proviso that the NLRB may not “issue any new administrative directive or regulation that would provide employees any means of voting through any electronic means in an election to determine a representative for the purposes of collective bargaining.” This policy rider, although not oft-discussed, is important to maintain the security of representation elections.
The NLRB also would be prohibited from enforcing the National Labor Relations Act against Native American tribes. The provision is a response to the NLRB’s 2004 San Manuel Indian Bingo and Casino decision in which the Board discarded its longstanding precedent to assert jurisdiction over Native American tribes. Prior to that decision, the NLRB had respected the sovereignty of tribes and refrained from interfering with their legal autonomy, but the San Manuel decision stated that the Board would decide on a case-by-case basis whether or not to assert its jurisdiction.
Lastly, the bill states that the NLRB may not “issue, enforce, or litigate any administrative directive, regulation, representation issue, or unfair labor practice proceeding, or any other administrative complaint, charge, claim, or proceeding based on the standard for determining whether entities are ‘joint employers’ set forth … in Browning-Ferris Industries of California” (emphasis added). As observers of labor policy know, in Browning-Ferris the NLRB threw out its longstanding standard for determining joint employer status and replaced it with a vague and sweeping definition that could make businesses liable for workplaces they don’t control, and workers they don’t employ.
As with any legislation, it remains to be seen whether the spending bill will become law in its current form. Nevertheless, the fact that the Appropriations Committee included these important riders is an important step in that direction.
About the authors
Sean P. Redmond
Sean P. Redmond is Vice President, Labor Policy at the U.S. Chamber of Commerce.
