Bloomberg Law
Aug. 3, 2016, 4:00 AM

Cuellar, Blue Dogs Shake Up Labor Divides in Congress

Business groups are turning to an unexpected ally in their fight against Obama administration labor initiatives: a Texas Democrat who has recently split from his colleagues on some of the biggest workplace policy issues before Congress.

Rep. Henry Cuellar is among a small group of “Blue Dog” Democrats, some of whom are siding with Republicans in criticizing Obama administration initiatives to expand overtime eligibility and broaden joint employer liability under federal law. That makes him a valuable ally for employer groups that want to make the case that they’re not just playing partisan politics by opposing the moves.

“I am fortunate to have many friends in the labor community and we enjoy an honest and open dialogue on all issues, especially on issues where we have different perspectives,” Cuellar told Bloomberg BNA via e-mail Aug. 2. “Sometimes we agree, sometimes we disagree, and sometimes we find compromise through our discussions—like any friendship.”

The International Franchise Association is among the business organizations fighting an uphill battle against the overtime rule (RIN:1235-AA11) and the National Labor Relations Board’s recent decision to expand joint employer liability under federal labor law.

The association is hoping that Cuellar and other Blue Dogs can work behind the scenes to push appropriations riders blocking the moves, or at least build momentum for similar efforts once a new president takes office next year.

“At a time when politics is more and more senseless and politicians aren’t very courageous, Congressman Cuellar has shown great sensibility and great courage in support of the small business owners he represents,” Michael Layman, the IFA’s vice president of regulatory affairs, told Bloomberg BNA Aug. 2.

Unlikely Sources of Support.

Cuellar’s unique perspective on the issues—he’s a pro-life, pro-trade, border security hawk who endorsed George W. Bush in his first White House run—has gained him some unexpected support.

He’s the only Democratic lawmaker ever to be endorsed by the Club for Growth—which threw its weight behind Cuellar during a 2006 Democratic primary—and he’s also been backed by the National Rifle Association and the U.S. Chamber of Commerce.

But that doesn’t mean anyone expects him to switch parties any time soon. Cuellar has risen to influential seats on the Democratic Steering and Policy Committee and the party’s Congressional Campaign Committee while burnishing a reputation as a bipartisan centrist.

The Club for Growth, which scores lawmakers on votes related to the group’s mission of shrinking government, cutting taxes and eliminating red tape, gives Cuellar only a 25 percent lifetime record through 2015.

Andy Roth, the Club for Growth’s vice president of government affairs, told Bloomberg BNA the group backed Cuellar in the 2006 primary because he was in a better option than the other candidates for the Democratic nomination.

“The best thing I can say about him is that he doesn’t want to punish success and he doesn’t want to get in the way of the free market,” Roth said of Cuellar.

That’s similar to the could-be-worse approach that some labor groups also appear to be taking with Cuellar.

“In Texas in the Republican primary we have had many instances of extreme right wing candidates versus regular business people that oppose labor but tolerate our existence,” Rene Lara, the legislative and political director for the AFL-CIO’s Texas affiliate, told Bloomberg BNA Aug. 1. “He’s very amiable on a personal basis, and our differences are purely on the policy aspects of his record on some major issues related to labor.”

“The best thing I can say about him is that he doesn’t want to punish success and he doesn’t want to get in the way of the free market,” Andy Roth said of Cuellar.

Cuellar earned a 76 percent lifetime voting record through 2014 from the national AFL-CIO, despite his consistent support for trade deals. The Chamber says he’s sided with it on key votes 83 percent of the time through 2015.

Holding Nose on ‘Rank Partisanship.’

Cuellar isn’t the only Democrat to come out against recent high-profile Obama administration initiatives.

Most lawmakers who cross the aisle on labor issues are members of the Blue Dog Coalition, a group of 14 fiscally conservative Democrats known for moderate positions on trade policy and some social issues. They often say they’re concerned about overreach by administrative agencies and would like those moves tempered with input from Congress.

A group of five Blue Dogs in July introduced legislation (H.R. 5813) that would slow the new overtime rule, which is expected to make some 4 million workers newly eligible for time and a half pay beginning in December. Critics are concerned that the rule will force employers to shed jobs, and the legislation is intended to allow them to better absorb rising payroll costs.

Bill sponsor Rep. Kurt Schrader (D-Ore.) told Bloomberg BNA the measure offers a compromise for lawmakers on each side of the debate. “There’s no reason for one side to be pitted against the other, other than because of the partisanship that’s rank in this building,” Schrader said July 13.

Cuellar is also one of three Democrats—along with Reps. Collin Peterson (Minn.) and Brad Ashford (Neb.)—to sign on as co-sponsors to legislation (H.R. 3459) that would undo the NLRB’s decision in Browning-Ferris Industries of California Inc., 362 N.L.R.B. No. 186, 204 LRRM 1154 (2015). The board in that case expanded joint employer liability under federal labor law, holding that a business may be deemed a joint employer if it indirectly controls an employment relationship or has reserved the right to do so.

The board said it was simply updating existing law to reflect modern workplace realities, but opponents have criticized a decision they say muddies the waters for employers across industries. That includes franchise businesses who say the change will force franchisers to exercise more day-to-day control over their franchisees.

Cuellar has echoed concerns from the IFA and the Chamber about the decision decimating franchise business relationships. He’s also said the board should have gone through Congress before wiping out decades of precedent.

“I’ve always described myself as, and caucused with, the Blue Dogs because I believe all sides have important perspectives to bring to an issue,” Cuellar told Bloomberg BNA. “We need to take a step back and insure the other branches aren’t acting independently of the Congress and that all our constituents have a say in the policy.”

Appropriations Negotiations Coming.

Opponents’ best shot to stop the overtime rule and joint employer decision is through the appropriations process.

A Labor Department spending bill (H.R. 5926) that Cuellar in July crossed the aisle to help approve in the Appropriations Committee isn’t likely to become law. Still, the policy riders to block the overtime rule and joint employer decision that were included in the measure may serve as markers in negotiations over an omnibus spending package expected to come later this year.

Cuellar, Peterson and Ashford were the only Democrats who signed a March letter to House appropriators asking them to include the joint employer rider in the Labor Department spending measure.

A similar rider was dropped from last year’s omnibus spending legislation near the end of negotiations. Business groups are hoping that some Blue Dogs can convince their colleagues at least to not oppose, if not publicly support, the rider this time around.

“I’m not going to speculate on the thoughts of my fellow members of Congress, but I have heard from Democrats who are skeptical,” Cuellar said of the joint employer ruling. He told Bloomberg BNA that he supported the spending measure at the committee level because he wanted to give the full House an opportunity to consider the legislation.

“I don’t agree with everything in the bill, but I know this is not the final version of the bill and we must continue negotiating to keep the process moving and get things done,” Cuellar said.

To contact the reporter on this story: Chris Opfer in Washington at

To contact the editor responsible for this story: Susan J. McGolrick at

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