ABC Vice President of Federal Affairs Geoff Burr April 10 testified before the U.S. House of Representatives Appropriations Labor, Health and Human Services subcommittee during a hearing, “Regulatory Approaches to Foster Economic Growth.” In his testimony, Burr spoke on behalf of ABC and the ABC-led Coalition for a Democratic Workplace (CDW) about burdensome regulations and policies.

“For the last four years, the Obama administration has driven an aggressive rulemaking agenda,” Burr said. “Many of these regulations have been promulgated hastily with limited stakeholder input and questionable legal authority. Clearly, this is not an environment conducive to growth.”

Specifically, Burr called attention to actions and policies by the NLRB and DOL.

The two rulemakings by the NLRB that were called out included the ambush elections rule and the “employee rights” notice posting rule. 

Under the ambush elections rule the amount of the time between when a union files a representation petition and an election takes place would be reduced from the current average of 40 days to as few as 17 days. In May 2012, a district court deemed the rule invalid because the board did not have a quorum when it was adopted. The NLRB appealed, but it was suspended pending the outcome of the separate NLRB appeal of a decision that President Obama’s early 2012 recess appointments of three members to the NLRB was unconstitutional. That decision renders any subsequent actions by the board invalid because they did not have a quorum.

Under the “employee rights” notice posting rule, employers would be required to display a poster in their workplaces that contains an unbalanced and incomplete list of employee rights under the National Labor Relations Act. The rule has been subject to several legal challenges, all asserting that the NLRB lacked the requisite authority to issue the rule.

In March 2012, the D.C. district court ruled the NLRB could mandate the notice posting, but could not impose automatic sanctions for failure to post. The following month, the U.S. District Court for South Carolina ruled in a separate case that the notice posting requirement exceeded the board’s statutory authority. Both cases have been appealed, and a formal injunction was granted by the D.C. Circuit in April 2012, preventing the board from implementing the rule pending appeal.

In addition, Burr indicated a need for Congressional restraint of the NLRB. In the wake of the appeals court decision that Obama’s 2012 recess appointments were unconstitutional, NLRB Chairman Mark Pearce defiantly stated the board “will continue to perform [its] statutory duties and issue decisions.” Since then the NLRB has indicated it will appeal the decision to the U.S. Supreme Court and Pearce and the other two invalid appointees have been renominated by President Barack Obama.

In addition to NLRB actions, Burr pointed to the DOL’s “persuader” reporting rule, which the agency tentatively plans to complete soon. The proposal would expand the circumstances in which consultant services provided to an employer that are used to inform employees about their rights to collective bargaining would have to be reported by both the consultant and the employer.

Burr called the proposal concerning because it would:

• gut the underlying statute’s protection of attorney-client privilege;
• improperly restrict the definition of “advice”; 
• blur the line defining true persuasion; 
• conflict with attorney ethics; and 
• infringe on employers’ rights to free speech, freedom of association and legal counsel. 

“For employees, their collective right to obtain balanced information about joining a union will be all but eviscerated,” Burr said. “In turn, competitors, union organizers and others stand to benefit from having access to previously confidential information.”

Finally, Burr pointed to PLAs – specifically, Executive Order 13502 that strongly encourages federal agencies to require PLAs on a case-by-case basis on federal construction projects exceeding $25 million – as a regulation that negatively impacts both businesses and taxpayers.

Burr cited the New Hampshire Job Corps Center project that was bid with a PLA mandate until a bid protest was filed. When the project was rebid without the PLA, the low bidder was a local firm that came in 18 percent below the out-of-state low bidder when a PLA was in place.

"The results in the Manchester Job Corps Center example demonstrate government-mandated PLAs reduce competition, increase costs and harm local businesses,” Burr said. “PLA mandates are one of many examples of ill-conceived government regulations advanced by the White House that serve special interests while punishing job creators and taxpayers.”

For more information, read The Hill article, “Labor rules assailed at testy House hearing.”