Blocking “Joint Employer” Rule Chance for Republicans to Start Rebuilding Congressional Power

The president’s infatuation with his perception of social and economic progress requires a lot more power than the Constitution affords the White House. The results of the mid-term elections apparently have not deterred the administration’s over reach for power. At a meeting with congressional leaders following the recent elections, the President threatened yet again to side-step Congress and sign an executive order regarding illegal immigration; essentially granting full amnesty. 

As a consequence, Republicans need to do more with House and Senate majorities than score points with voters two years hence, conservative policy analysts says. They need to embattle Congress to the front lines again, proving equal command with the executive branch.

A good start would be the reining in of one of the president’s top agencies for implementing his new order, the National Labor Relations Board (NLRB). The first order by congress should be the blocking of a pending standard, “joint employer”, that reads as though it was drafted by an organized labor activist. .

“With past presidents, the umpiring went a little bit business’ way under the Republicans and a little bit the unions’ way under the Democrats,” said James Sherk, senior policy analyst in labor economics with The Heritage Foundation. “But under this president, the strike zone has changed all together. They’re calling strikes when the ball bounces in front of home plate.”

The “joint employer” memorandum issued by NLRB’s General Counsel – one overturned by the Board almost 30 years ago - would authorize employees of McDonald’s restaurants to argue that the franchisor is jointly responsible with the franchisee for unfair labor practices. The standard could not only make corporate franchisors, parent companies and those who use contract workers liable in worker lawsuits, but potentially responsible in any collective bargaining activity. In short, the new standard would set the stage for large scale organizing by unions.

“McDonald’s is really set up as thousands of individual small businesses where franchisees are responsible for pay and conditions,” said PMA Executive Director David N Taylor. “Unions don’t want to approach workers at each business; they like the big targets. They want McDonald’s and the other businesses under one big umbrella.”

The potential impact extends beyond the franchise businesses. Geoff Burr, Vice President, Government Affairs, Associated Builders and Contractors, Inc., says the downstream effect for the construction industry would be “massive.”

“The relationship between the franchisor and franchisee is very similar to the relationship between contractor and sub-contractors on a construction site,” Burr said. “Making the contractor liable for the sub-contractor defeats the entire business model just as it would in the franchise restaurant industry.”

The NLRB’s mischief during Obama’s tenure was perhaps most evident with the attempt to stop Boeing from building a manufacturing plant in South Carolina in 2011. It accused the aircraft manufacturer of violating federal labor laws. Boeing’s real crime, at least in the eyes of the Board, was that it planned to build a manufacturing plant in a Right to Work state – a state where workers are free to choose whether to join or financially support a union. The NLRB retreated only when International Association of Machinists and Aerospace Workers, which filed the grievance in the first place, withdrew its case after striking a deal with Boeing to raise wages and expand jet production in the state of Washington.

The Republicans could stop the Board’s joint employer standard, and egregious moves by other agencies (the EPA is also at the top of the list), by attaching riders to appropriation bills that fund basic agency operations but prohibit using any funds to implement certain rules.

“Bush got a lot of riders from a hostile Congress in his last two years,” Sherk said. “It’s fair to assume Obama is facing a hostile Congress as well.

A long term solution lies with a NLRB reform bill introduced by Senator Lamar Alexander (R-Tenn) and soon-to-be Majority Leader Mitch McConnell (R-KY) that will among other things, expand the NLRB from five members to six, three Republicans and three Democrats, as well as require a majority of four members to make a decision to encourage consensus from both sides.  The five-year terms of the members would be staggered, and synchronized in pairs, with one member from each political party facing confirmation at the same time.  Alexander’s office said the bill would be re-introduced in the new session that begins in January.

In a broader sense, Republicans can also pursue legislation that would act as a preemptive strike against certain agency rule changes.  For example, lawmakers might draft a bill to clarify the definition of "employer" under the National Labor Relations Act to counter the agency's intent to change how it determines who is a "joint employer.”    

Along the same lines, legislation is expected in the new session that would stop the EPA’s plans to exponentially expand its authority over the nation’s waterways by re-defining what constitutes “navigable waterways” under the Clean Water Act (CWA). The EPA says it’s only “clarifying exactly what should be considered Waters of the United States (WOTUS).” This “clarification” will bring countless additional waterways under its authority, even including temporary bodies (glorified puddles) of waters that appear after a heavy rainfall. Read more on this topic here.  

“Under the proposed changes, even most ditches will now be under the EPA’s jurisdiction,” said Darren Bakst, Research Fellow in Agricultural Policy at the Heritage Foundation. “The proposal completely runs roughshod over the principle of cooperative federalism that is supposed to cover water regulation where the states are meant to play a central role.”

PMA’s Taylor said it’s vital for Congress to take its rightful place as an equal partner in governing America. “Almost from the beginning, this administration has acted as if it answers to no one,” Taylor said. “The mid-term election results show that’s just not the case. It’s time for Congress to step up and reclaim its authority as a co-equal branch of government.”

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