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GOP Strategy on Labor Issues Remains Hazy

The new Republican-controlled Congress is expected to take a pro-business approach to labor issues, including trying to rein in what GOP leaders consider an activist National Labor Relations Board and perhaps blocking some of its decisions.

Among the targets: a potential NLRB ruling that says college athletes are school employees, union elections should happen more quickly and national franchise companies should be responsible when franchisees violate labor laws.

“There’s a big shopping list here, based upon their past hostility to the board and to the [National Labor Relations] Act, that could attract their attention,” said William B. Gould IV, who was chairman of the NLRB during the President Bill Clinton administration from 1994 to 1998.

One overriding issue is the makeup of the five-person board and whether it will have enough members to make decisions. From 2008 though 2010, a tug of war over appointments between President George W. Bush and Democratic leaders in Congress left the NLRB with only two members, not enough to transact business.

Democratic member Nancy J. Schiffer’s term expires on Dec. 16, and if her replacement isn’t confirmed by then, observers expect the board to make several controversial rulings.

The White House in November pulled the nomination of Sharon Block, who faced likely insurmountable Republican opposition because she had previously served on the board under a recess appointment. The Supreme Court ruled Block’s appointment unconstitutional this summer.

President Barack Obama instead nominated Lauren McFerran, who currently is counsel to Democrats on the Senate Health, Education, Labor and Pensions Committee. The panel approved her nomination in a party-line vote Tuesday morning, but it’s unclear whether enough floor time remains to confirm her nomination by the end of the year.

Failing to get these decisions out by mid-December could leave the board deadlocked for months with two Democratic members and two Republicans, said Mike Ferrell, an attorney with Jones Day who represents business clients on labor issues.

“If you can’t get it out by Dec. 16, then you’re stuck at 2-2 until you get a confirmation, and it wouldn’t surprise me if the Republicans were to hold that hostage,” Ferrell said.

Republican Harry Johnson’s term expires in August, so Hill GOP leaders could wait to confirm a Republican and Democrat simultaneously. But delaying that vote pushes the issue closer to the 2016 presidential campaign, Ferrell noted, a further complicating factor.

Football and Fast Food

Of the pending cases likely to be decided while a Democratic majority remains, the one that has attracted the most public attention is a move by football players at Northwestern University to form a union.

A regional NLRB official decided last spring that the students are employees of the school under the National Labor Relations Act, and the full board this summer completed collecting legal briefs ahead of its decision on the school’s appeal.

During McFerran’s confirmation hearing, Sen. Lamar Alexander of Tennessee, the senior Republican on the HELP Committee, strongly objected to discarding the idea of a student athlete.

“Student athlete is a valuable concept and the universities are dealing with it and the presidents are in charge of that,” Alexander said. “To destroy that experience for thousands and thousands of students would be a terrible mistake in my opinion.”

The board is also in the process of rewriting union election rules, including speeding up the timeline for holding elections and requiring employers to disclose more employee contact information to union representatives as they begin campaigns to form unions.

The NLRB has been working to rewrite the rules for several years. A district judge struck down an earlier version in 2012, and the NLRB had a public meeting and took comments on this version of the rule in April.

Republicans deride the proposed changes as “ambush election” rules that favor unions, and the House passed legislation in the last Congress to block the regulations.

“It would just shock the conscience if the majority of the board can’t get them out by Dec. 16,” Ferrell said, noting the board’s history in trying to propose the rules.

Other pending decisions concern whether national franchise companies are considered joint employers with individual franchisees, and therefore liable for their employment law breaches, and whether employees can use company email systems when working to form a union.

Follow the Money

Although Republicans may try to target the regulations with legislation, the president would likely veto those efforts, and Republicans don’t have a sufficient majority to override him.

Obama could also block GOP efforts pushed by Alexander and incoming Majority Leader Mitch McConnell to overhaul the entire board by expanding it to six members, setting deadlines for deciding cases and allowing parties to take cases to the courts sooner in the process.

“You can amend the act, but you have to have somebody on Pennsylvania Avenue that wants to sign it,” Ferrell said. “They’re playing to their base, God love ’em, but the president’s not going to sign their act.”

Republicans may have more success stopping NLRB decisions through the appropriations process.

There is precedent — the GOP-controlled Congress in the 1990s, unable to get support from Clinton for broad legislation, added riders to appropriations bills that prohibited the board from spending money to enact new regulations that would limit litigation on what constitutes a labor bargaining unit.

Putting a rider on an appropriations measure makes it a “tougher choice” for a president who could otherwise simply veto a standalone bill, Gould said.

“I would imagine that is the easiest way for them to go,” he said, “because that’s what they did to us.”

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