On May 23, President Joe Biden nominated National Labor Relations Board Chair Lauren McFerran to serve a third term, threatening Democratic control of the Board through August 2026, regardless of who wins the presidency in November. McFerran’s tenure has been the subject of congressional hearings and oversight letters as well as numerous press reports and editorials highlighting the agency’s failures. In addition, an Office of the Inspector General report found that the Board was operating under “gross mismanagement.”

On July 25, ABC and the ABC-led Coalition for a Democratic Workplace sent letters to the committee expressing concerns over McFerran’s nomination.

Under McFerran’s leadership, the NLRB has issued decisions and expanded interpretations of the National Labor Relations Act that have been rejected by the business community, Congress, and federal courts, including the Board’s joint employer standard and its revived controversial policies through its Representation-Case Procedures final rule.

Senate Health, Education, Labor and Pensions Committee Chairman Bernie Sanders has opted to proceed to a markup of McFerran’s renomination without a formal confirmation hearing, allowing her record to go unchecked and unquestioned by committee members.

On July 10, the U.S. House Committee on Oversight and Accountability held a hearing to analyze actions taken by the U.S. Environmental Protection Agency. In a letter to the committee, ABC expressed concern with EPA and U.S. Army Corps of Engineers final rule regarding amendments to the definition of “waters of the United States” subject to Clean Water Act regulation aimed at bringing their original January 2023 WOTUS rule into compliance with the U.S. Supreme Court’s May 25, 2023, decision in Sackett v. Environmental Protection Agency. ABC noted that the revised rule fails to fully implement the court’s opinion specifically on the definition of “relatively permanent” waters and that it will likely result in continued litigation, regulatory uncertainty and confusion in the business community surrounding WOTUS.

On Aug. 29, the EPA and Corps issued the final rule making adjustments to WOTUS, including:

• Removing the “significant nexus” test entirely
• Removing the “interstate wetland” category
• Adjusting the definition of “adjacent waters” to mean “having a continuous surface connection”

ABC issued a press release criticizing the new rule and urging full compliance with the SCOTUS decision.

On July 10, the U.S. House Committee on Small Business held a hearing titled, “"Main Street Realities: Examining the Current Economic Landscape in America.” Ahead of the hearing, ABC sent a letter to the committee expressing concerns with the numerous regulations that generate substantial burdens for America’s small businesses and loopholes in the Regulatory Flexibility Act that federal agencies use to implement these regulations at the expense of America’s small business community.

Specifically, ABC noted the impact of the U.S. Department of Labor’s final rule on Employee or Independent Contractor Classification Under the Fair Labor Standards Act, as well as the final rule changing overtime regulations under the Fair Labor Standards Act.

Leading up to the hearing, ABC’s Chief Economist Anirban Basu spoke with committee staff to discuss the challenges facing small business contractors.

On July 9, the U.S. House Committee on Transportation and Infrastructure Subcommittee on Railroads, Pipelines and Hazardous Materials held a hearing titled, “An Examination of the California Air Resources Board’s (CARB) In Use Locomotive Regulation.” The hearing focused on the California Air Resources Board’s In-Use Locomotive Regulation. Pursuant to section 209(e) of the Clean Air Act, the regulation would ban all locomotives 23 years or older from operating within California and mandate zero-emissions locomotives by 2030. Prior to the hearing, ABC sent a letter to the committee expressing concern over the regulation and the wide-ranging impact it could have on the construction industry, including new logistical challenges and increased materials prices.

On June 13, the U.S. House Committee on Science, Space and Technology Subcommittee on Investigations and Oversight held a hearing titled, “Environmentalism Off the Rails: How CARB will Cripple the National Rail Network.” The hearing focused on the California Air Resources Board’s In-Use Locomotive Regulation. Pursuant to section 209(e) of the Clean Air Act, the regulation would ban all locomotives 23 years or older from operating within California and mandate zero-emissions locomotives by 2030. Prior to the hearing, ABC sent a letter to the committee expressing concern over the regulation and the wide-ranging impact it could have on the construction industry, including new logistical challenges and increased materials prices.

On June 12, the U.S. House Committee on Education & the Workforce Subcommittee on Health, Education, Labor, and Pensions held a hearing titled “NLRB Overreach: Trampling on Workers’ Rights and Fostering Unfairness.” The hearing focused on the National Labor Relations Board’s bad decisions and degradation of rights and protections under Chair Lauren McFerran’s failed leadership. Specifically, members noted that the NLRB has restricted employee free choice through decisions that impact the right to free and fair representation elections, the definition of an independent contractor under the NLRA, a dangerous expansion of the definition of Joint Employer, and the ability to register a decertification election.

Ahead of the hearing, the ABC-led Coalition for a Democratic Workplace sent a letter to the committee regarding concerns over McFerran’s renomination to serve as chair of the Board.

On May 22, the U.S. House Committee on Small Business held a hearing titled, “Burdensome Regulations: Examining the Biden Administration’s Failure to Consider Small Businesses.” Prior to the hearing, ABC sent a letter detailing concerns with the Biden administration’s rulemakings that disregard small businesses, diminish their ability to compete and undermine their integral role in building America’s infrastructure. The letter specifically highlighted the U.S. Department of Labor’s final rules on overtime and Employee or Independent Contractor Classification Under the Fair Labor Standards Act, as well as the Federal Acquisition Regulatory Council’s final rule on the Use of Project Labor Agreements for Federal Construction Projects.

You can watch the full hearing on the committee’s YouTube channel.

On May 22, the U.S. House Committee on Education and the Workforce Subcommittee on Health, Education, Labor and Pensions held a hearing entitled: "Big Labor Lies: Exposing Union Tactics to Undermine Free and Fair Elections.” Prior to the hearing, ABC submitted comments highlighting the harms of salting, card check and neutrality agreements.

The full committee hearing can be seen here.

On May 15, the U.S. House Committee on Education and the Workforce held a hearing titled “Examining the Policies and Priorities of the Department of Health and Human Services” with HHS Secretary Xavier Becerra. Ahead of the hearing, ABC sent a letter to the committee outlining key principles and priorities that will allow employer-sponsored coverage to thrive. Specifically, ABC highlighted federal tax exclusions and the need for compliance relief for employers that are critical to the sustainability of employer-sponsored coverage.

On May 13, ABC sent a letter to Rep. Jay Obernolte, R-Calif., and the U.S. House Energy and Commerce Committee’s Environment, Manufacturing, and Critical Materials Subcommittee, urging the committee to oppose the U.S. Environmental Protection Agency’s authorization of new California regulations on locomotive emissions.

The regulations, implemented by the California Air Resources Board, state that all locomotives in California must be zero-emission models by 2030. Under the Clean Air Act, the EPA must approve CARB’s regulations before they can be finalized, but the agency has yet to issue a final decision.

ABC’s letter, submitted in advance of a May 15 subcommittee hearing on the EPA’s budget with Administrator Michael Regan, outlines the enormous cost of compliance with this regulation and the potential for wide-ranging impacts on key aspects of the construction materials supply chain. The letter requested that the subcommittee strongly question Administrator Regan regarding the agency’s position on the ban.

ABC previously joined a coalition of industry stakeholders in comments to the EPA asking the agency to deny authorization of the ban.