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Regulatory Reform Faces Obstacles

College players are employees, NLRB counsel says.

The goal of shrinking the regulatory burden on businesses will take longer than Republicans in Congress and President Trump originally thought.

With Democrats waging a campaign of massive resistance to the new President, confirmation of his nominees for cabinet positions is moving slower than normal.

Keep in mind that the longer it takes for department secretaries to take their posts, the more delay there is in putting into place the thousands of managers under them to begin overturning policies that were adopted during the Obama Administration.

Without lower level departmental managers in place, it is nearly impossible for the new administration to begin active pursuit of its planned “draining the swamp” in Washington, DC, by eliminating Obama Era holdovers.

It also means that it will take longer for the Administration to slash tens of thousands of jobs on the federal payroll, and begin fulfilling Trump’s executive order calling for elimination two existing regulations for every new one adopted.

Some Democrat senators also admit that part of the strategy is aimed at delaying confirmations until the 60-day deadline runs out beyond which Congress cannot overturn the last-minute rules issued by the Obama Administration following last November’s election.

Republican legislators resorted to the seldom-used Congressional Review Act (CRA) to strike down two Environmental Protection Agency rules adopted at the end of the last Administration (AA, 1-15-17, P. 4).

Under the CRA Congress can only overturn rules that were finalized within the previous 60 days. After that, to accomplish the same goal requires reopening each rulemaking proceeding and following time-consuming administrative steps that are required by federal law.

The Trump Administration also has had its hands full since the inauguration dealing with such high-profile issues as immigration, a Supreme Court nomination, and Trump’s adolescent inability to leave a thought unexpressed on Twitter.

And then there is the matter of the independent agencies, where the President can only replace key personnel when their multi-year terms expire.

Trump has appointed sitting new chairs (his right under the law) for agencies such as the Equal Employment Opportunity Commission and for the National Labor Relations Board, where Republican member Philip Miscimarra was made acting chair.

The President also can immediately nominate Republicans to two vacant seats on the board, but they also will need to be confirmed by the Senate.

One wrinkle is the odd management structure of the NLRB, where the General Counsel also serves a set term, and must be nominated by the President and approved by the Senate. (AA, 1-15-17, P. 1).

The board only sets policy by ruling on individual unfair labor practice complaints passed up to it by 46 regional directors. Those directors are directed and supervised by the NLRB General Counsel. As a result, current General Counsel Richard B. Griffin Jr. plays an outsized role in board policymaking.

Just how much mischief he can cause before his term ends this November was vividly shown recently, when he declared that Division I college football players on scholarship were to be considered employees for purposes of joining unions and being allowed to bargain collectively.

In a January 31 guidance memorandum sent to regional directors and other NLRB enforcement personnel, Griffin directed them to regard college football players as employees when it comes to filing unfair labor practice charges.

Two years ago the NLRB voted unanimously to dismiss a petition by Northwestern University football players who were seeking permission to unionize (AA, 8-31-15, P. 2).

At that time the board decided that extending its jurisdiction to cover the university players “would not promote stability in labor relations.”

Another unspoken reason may well have been that the ensuing public outcry and controversy could have created additional difficulties for Democrats during the 2016 election cycle.

This time leaders in the new Republican Congress quickly made known what little regard they held for Griffin’s memo.

Two days after it was issued, Virginia Foxx (R-NC), chair of the House Education and the Workforce Committee, and Tim Walberg (R-MI), chairman of the Health, Employment, Labor, and Pensions Subcommittee, jointly called for Griffin to “withdraw his memorandum immediately or step aside as General Counsel.

They also declared that the “memorandum puts the interests of union leaders over America’s students, and it has the potential to create significant confusion at college campuses across the nation.”

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