Beltway Buzz – Ogletree & Deakins
Congress: Lather. Rinse. Repeat. After scuttling plans last month to vote on both a $1.2 trillion bipartisan “hard infrastructure” bill that the U.S. Senate approved, 69–30, on August 10, 2021, and a proposed $3.5 trillion budget reconciliation package of social programs focused on “human infrastructure,” Democrats huddled this week to hammer out their differences regarding the size and scope of the latter package. The current legislative schedule would bring both measures up for votes in the U.S. House of Representatives before the end of October 2021. There is no word yet on the status of provisions increasing and adding penalties to various federal labor statutes or on the contours of a proposed federal paid leave plan. Because Democrats are seeking to lower the overall costs of the human infrastructure legislation, any paid leave plan would likely be less generous than what was included in the original draft.
Workplace Safety Update. It was another busy week in the workplace safety policy arena.
ETS remains under review. As the Buzz goes to the press, the Occupational Safety and Health Administration’s (OSHA) COVID-19 emergency temporary standard (ETS), which would require the vaccination or weekly testing of workforces of employers with 100 or more employees, remains under review at the Office of Information and Regulatory Affairs (OIRA). To date, OIRA has held 64 stakeholder meetings on the vaccination ETS. Of course, the OIRA process is rather opaque and there is still no sign as to when the ETS will issue, other than “very soon.”
OSHA and state plan friction. This week, Acting Assistant Secretary of Labor for Occupational Safety and Health James Frederick sent letters to workforce agencies in Arizona, South Carolina, and Utah, stating that OSHA would begin proceedings to revoke approval of those states’ workplace safety plans due to the states’ alleged failure to adopt OSHA’s healthcare ETS, finalized in June 2021. The standoff may foreshadow similar legal roadblocks that the administration could face when implementing its vaccination ETS. Indeed, a group of Republican attorneys general has threatened to take legal action against the ETS (and Arizona’s attorney general already has).
Senate to vote on assistant secretary. On October 25, 2021, the U.S. Senate is expected to vote on the confirmation of Douglas Parker to be assistant secretary of labor for occupational safety and health. Parker currently leads the California Division of Occupational Safety and Health (Cal/OSHA).
Heat standard rulemaking begins? While the vaccination ETS remained pending at OIRA, the agency this week completed a review of its request for information/advance notice of proposed rulemaking on a heat standard. The U.S. Department of Labor has referred to the action both ways (as a “request for information” and as an “advance notice of proposed rulemaking”), but however the action is styled, it will represent the very early stages of the rulemaking process.
Republicans Ask for Dem Board Member Recusal. Buzz readers may recall the ethical kerfuffle that surrounded the National Labor Relations Board (NLRB) in late 2017 and early 2018 concerning its handling of the joint-employer issue. Now a similar issue is being raised with regard to Democratic NLRB members’ ties to labor unions. In a letter released on October 20, 2021, a group of 14 Republican members of the Senate and House asked NLRB Chair Lauren McFerran to resolve potential conflicts of interest regarding members Gwynne Wilcox and David Prouty, who previously served as in-house attorneys at affiliates of the Service Employees International Union (SEIU). The letter specifically focuses on potential conflicts that members Wilcox and Prouty might have with regard to issues touching on the Board’s joint-employer rule, which the SEIU is currently challenging in federal court. The letter states, “Members Wilcox and Prouty cannot be neutral arbiters on cases involving issues or policies concerning the Final Rule. This conflict raises concerns that each will predetermine policy outcomes, and at a minimum, their involvement in such matters would create the appearance of a conflict of interest.” No word yet on how Chair McFerran will respond.
Task Force Report on Encouraging Unionization Due. By October 26, 2021, Vice President Kamala Harris and Secretary of Labor Martin Walsh are scheduled to deliver to President Joe Biden a report from the Task Force on Worker Organizing and Empowerment. In fact, the report might arrive as early as this weekend. The report is expected to recommend ways that the executive branch could use its authority to increase union density. This might include actions such as reviving a version of President Barack Obama’s Fair Pay and Safe Workplaces executive order. Further, according to then-candidate Biden’s campaign website, the task force (termed a “cabinet-level working group” on the website) would:
“consider whether there are very specific areas where the federal government could waive preemption of the National Labor Relations Act to allow cities and states to pursue innovative ways to increase union organizing and collective bargaining without undermining current workers’ protections, like allowing for neutrality agreements and card check”; and
“work with unions and trade associations to further explore the expansion of sectoral bargaining, where all competitors in an industry are engaged in collective bargaining with a single or multiple unions.”
Whatever it contains, the report is likely to be a road map for future administrative action.
Clean Water Act Anniversary. October 18, 2021, marked the 49th anniversary of the enactment of the Clean Water Act. Technically speaking, the law is named the Federal Water Pollution Control Act Amendments of 1972, and it amended the Federal Water Pollution Control Act of 1948 (FWPCA), Congress’s first major effort at addressing water pollution in the United States. Worsening environmental conditions in the 1960s, culminating with the burning of the Cuyahoga River in Cleveland, Ohio, in 1969, sparked national outrage that started the process that led to the 1972 amendments to the FWPCA. Though the amendments received bipartisan support, President Richard Nixon vetoed the bill, claiming that the legislation’s $24 billion price tag was too expensive. Hours later, in the very early morning of October 18, 1972, Congress overrode the president’s veto and enacted the Clean Water Act.