Democratic Sen. Joe Manchin (W.Va.) wants to kill a new progressive labor reform, and he’s teaming up with Republicans to try to do it.
Last week, the agency that enforces collective-bargaining law rolled out its new rule on joint employers. The regulation makes it more likely that big companies like McDonald’s will be held responsible for unfair labor practices involving their franchisees or subcontractors, or even forced to bargain with a workers’ union.
While labor groups have hailed the change as commonsense and long overdue, Manchin has panned it as government overreach and vowed to stop it from going into effect.
The West Virginia senator says he plans to join Republican Sen. Bill Cassidy (La.), ranking member of the Senate’s labor committee, on a legislative maneuver that would overturn the National Labor Relations Board’s joint employer rule and possibly make it harder to implement a similar rule in the future.
Manchin told HuffPost he is deeply opposed to the rule.
“It basically just destroys the entrepreneurial spirit, the capitalist spirit, everything that we are as Americans,” he said on Capitol Hill Tuesday.
Cassidy claimed in a statement that the reform would unfairly “saddle” big franchisors with liabilities that belong to their thousands of smaller franchisees.
The NLRB, an independent agency led by Senate-confirmed White House appointees, declined to comment on the remarks from Manchin and Cassidy.
It basically just destroys the entrepreneurial spirit.Sen. Joe Manchin on the NLRB's new rule
For years, big corporations like fast-food chains have denied liability for labor law violations inside the workplaces that produce or sell their products. They claim those responsibilities should lie with the smaller firms they contract with, like the fast-food franchisees who generally run the stores and sign workers’ paychecks.
But worker advocates say the companies at the top of the chain exert all kinds of control over working conditions and therefore should be held accountable when laws are broken.
Trade groups have pushed back hard against this legal reading with the help of mostly Republican lawmakers.
Now under Democratic control, the NLRB has moved forward with a joint employment rule that would effectively wipe out a McDonald’s-friendly version that was instituted by a GOP board under former President Donald Trump. The new rule would make it more likely that big corporations get pulled into legal proceedings as joint employers when workers are threatened or retaliated against for trying to organize.
Sen. Joe Manchin would need to recruit at least one other non-Republican to try to overturn the joint employer rule.
Liz Shuler, president of the AFL-CIO, a federation of 60 unions, said the NLRB’s rule was about “basic common sense.”
“The right to collectively bargain is nonexistent if the company that has the power to change workers’ terms and conditions of employment isn’t negotiating with workers,” she said in a statement.
A host of business lobbies, including the U.S. Chamber of Commerce and the National Retail Federation, immediately came out against the new rule.
The International Franchise Association, a lobby for the industry, has opposed a broad reading of the joint employment doctrine for years. The group argued in a statement that the board’s new rule would “upend” the franchise model and said it would try to stop it from taking effect “through any measure available,” including pursuing a lawsuit in federal court.
Bloomberg Law reported that the rule could face legal challenges based on the so-called “major questions doctrine,” which conservatives have increasingly relied upon to gut progressive reforms at the federal level. Last year, the conservative majority of the Supreme Court wielded the doctrine to roll back the Environmental Protection Agency’s efforts to curb climate change.
But the franchise association also called on lawmakers to step in and quash the joint employment rule by deploying the Congressional Review Act, the same vehicle Manchin said he plans to use with Cassidy.
Congress passed the CRA in 1996, giving itself a special power to kill regulations issued by federal agencies. The law enables lawmakers to veto agency rules within 60 legislative days from when they were submitted to Congress. The NLRB sent its joint employer rule to Congress on Oct. 27.
The CRA also bars an agency from reissuing a similar rule in the future “in substantially the same form,” though it does not define the scope of that term.
The right to collectively bargain is nonexistent if the company that has the power to change workers’ terms and conditions of employment isn’t negotiating.Liz Shuler, AFL-CIO labor federation
Republicans took great advantage of the CRA early in the Trump presidency to unwind several progressive reforms, including a rule meant to combat wage theft by employers.
The law is especially powerful because it can’t be filibustered in the Senate, meaning it takes a mere majority to pass a CRA resolution instead of the usual 60-vote supermajority, and it only takes a minority of senators to force a vote. Democrats hold a threadbare 51-49 majority in the Senate and can only spare the loss of one colleague. (In the event of a 50-50 tie, Vice President Kamala Harris would cast a tie-breaking vote.)
Manchin would need to rally at least one other non-Republican on his resolution.
He may find an ally in Sen. Kyrsten Sinema, the formerly Democratic Arizona senator who has infuriated progressives with some of her business-friendly positions. Sinema joined a letter with Manchin last year voicing concerns about the NLRB’s intention to pursue joint employer reform. Three Republicans and independent Sen. Angus King (Maine), who caucuses with Democrats, also signed the letter.
King told HuffPost he would need to see the resolution’s text before deciding if he’d support it, though disapproval resolutions under the law are required to say simply that Congress disapproves the rule and that “such rule shall have no force or effect.”
Sinema directed an inquiry to her office. Spokespeople for Sinema and King did not say whether the senators would back using the Congressional Review Act when HuffPost asked them via email.
Manchin told HuffPost he didn’t know if any Democrats would join him or when the vote would happen.
Sen. Kyrsten Sinema (I-Ariz.) joined Manchin in a letter last year criticizing the NLRB for pursuing joint employer reform.
If such a resolution passed the Senate, the GOP-controlled House would be likely to approve its own. House Republicans have opposed virtually the entire agenda of the NLRB’s Democratic board members and general counsel, holding hearings to blast the board’s efforts at reform.
But any resolution approved by Congress would still be subject to a veto by President Joe Biden, a labor ally who has reshaped the NLRB into its current labor-friendly makeup. Biden has cast himself as the “most pro-union president” in history and recently joined striking autoworkers on a picket line in Michigan.
The White House did not respond when HuffPost asked if Biden would veto a resolution overturning the joint employment rule if it landed on his desk. Not doing so would likely surprise and disappoint unions that have backed the president’s agenda.
The International Brotherhood of Teamsters, for instance, says companies like Amazon hide behind their subcontracting arrangements to avoid bargaining with certain workers. The online retail giant’s delivery network is made of thousands of “delivery service partners,” which are technically third parties even though their drivers may deliver exclusively Amazon orders.
Sean O’Brien, the Teamsters president, called the labor board’s new rule “a major blow against corporate greed” that could help pressure big companies to sit at the bargaining table.
“If this rule is properly applied,” O’Brien said in a statement, “it should guarantee corporations like Amazon cannot avoid their obligation to collectively bargain with their workers when they choose to join a union.”
CORRECTION: This story originally said the CRA gives lawmakers 60 days to veto agency rulemaking once it’s been implemented. In fact, they have 60 legislative days to veto it once it’s been sent to Congress. The story has also been amended to note that Sinema is now an independent and no longer a Democrat.