House and Senate Appropriations Committees Approve Funding Bills with Riders Targeting DOL, NLRB Initiatives

Both the House and Senate Appropriations Committees advanced bills this week to fund various federal agencies for FY 2016. Each chamber approved versions of spending measures that include riders prohibiting funding for a variety of the administration's regulatory initiatives.

On June 25, the full Senate Appropriations Committee voted 16-14 in favor of legislation to fund the Departments of Labor, Health and Human Services, and Education. Senate committee consideration came a day after the full House Appropriations Committee held its markup session of an analogous funding measure.

During Wednesday's markup session, the Committee approved by voice vote an amendment offered by Rep. Andy Harris (R-MD) that would effectively block the National Labor Relations Board from recognizing so-called "micro" bargaining units in the wake of the 2011 Specialty Healthcare decision, which changed the standard for determining the appropriateness of bargaining units. Under the new standard, if a union's petitioned-for unit includes a clearly identifiable group of employees, the Board is to presume the unit is appropriate. In order to include additional employees, an employer must now show that the additional group shares an "overwhelming" community of interest with those in the petitioned-for unit. The looser standard for certifying units has made it easier for unions to organize smaller factions of the workforce. During the markup session, Rep. Harris claimed the NLRB decision has resulted in a "fracturing" of the workforce. The Senate appropriations bill approved on Thursday contains a similar limitation.

As previously discussed, the House spending bill also contains riders that would prevent any funds from being used to, among other things, pursue a change in the definition of "fiduciary" under ERISA, alter the test for determining joint-employer status under the National Labor Relations Act, block the implementation of the NLRB's ambush election rule, prevent union agents from accompanying OSHA investigators to workplace safety inspections of non-union worksites, and create an Office of Labor Compliance, rendering the proposed contractor blacklisting rule untenable.  The Senate's spending plan includes many of the same prohibitions. According to a summary released by the Senate Appropriations Committee, the riders are intended to "to restrain regulatory overreach by the administration."

An amendment introduced by Sen. John Hoeven (R-ND) related to OSHA's regulatory efforts to establish a crystalline silica standard was approved by voice vote.  This amendment seeks to prohibit the use of funds to "promulgate or implement regulations relating to occupational exposure to respirable crystalline silica until additional studies and reports are completed."

While these riders may be welcome news for employers, there is no guarantee they will survive the final measure signed into law. It is likely that the Labor-HHS funding bill will be incorporated into an omnibus appropriations bill, rather than considered as a stand-alone bill.   

The Workplace Policy Institute will provide updates on the appropriations process and the fate of the riders blocking controversial agency actions.  

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.