Beltway Buzz – Ogletree Deakins
NLRB GC Pushes for Card Checks, Limits on Employer Speech. Last week, National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo filed a brief in a case asking the Board to make dramatic changes to federal labor law. The most significant potential changes relate to the following issues:
- Employer speech. As the Buzz recently discussed, the general counsel issued a memorandum to regional directors on employee attendance at mandatory workplace meetings. In last week’s brief, the general counsel formally asked the Board to rule that mandatory employer meetings that discuss the pros and cons of unionization with employees are unlawful because they “inherently involve a threat of reprisal to employees for exercising the protected right to refrain from listening to such speech.”
- Card check. The general counsel also asked the Board to reinstate a doctrine—abandoned more than 50 years ago—that would allow a labor union to organize via card check, unless the employer can demonstrate its “good faith doubt” as to the union’s majority status. In determining whether the employer has acted in good faith, the general counsel urged the Board to “consider all relevant circumstances, including any unlawful conduct of the employer, the sequence of events, and the time lapse between the refusal [to recognize and bargain with the union] and the unlawful conduct.” According to the brief, an employer’s lack of good faith “would include situations in which the employer’s reason for refusing to bargain is to gain time in order to persuade employees to change their minds, even using what would otherwise be lawful persuasion.”
While the Board has yet to rule in this case, the general counsel’s brief sets the table for changes that could upend the labor policy landscape. The Buzz will be closely monitoring this case, particularly if the Board solicits stakeholder feedback before ruling.
Razing Arizona. On April 21, 2022, the Occupational Safety and Health Administration (OSHA) published a proposal to revoke its final approval—issued in 1985—of Arizona’s occupational safety and health plan. According to OSHA, this proposal is “in response to nearly a decade-long pattern of failures to adopt and enforce standards and enforcement policies at least as effective as those used by the department’s Occupational Safety and Health Administration.” OSHA alleges that Arizona’s residential construction fall protection requirements are not up to snuff, that the state failed “to adopt penalty levels that are at least as effective as [f]ederal OSHA’s,” and that it did not adopt requirements at least as effective as OSHA’s COVID-19 emergency temporary standard (ETS) applicable to the healthcare industry. (Of course, this standard expired at the end of 2021.) Comments are due by May 26, 2022.
OSHA COVID-19 Healthcare Standard. Speaking of the COVID-19 healthcare ETS, today, April 22, 2022, is the deadline for the public to submit feedback in response to OSHA’s partial reopening of its comment docket for the COVID-19 healthcare ETS that was issued on June 21, 2021. OSHA now intends to make the healthcare ETS, which expired on December 21, 2021, a permanent standard. In its reopening notice, OSHA solicited public input on “potential rulemaking outcomes that would depart from the provisions of the ETS,” but the agency did not provide any specific proposed regulatory text.
EEO-1 Reports Are Due, but Are Changes Coming? The 2021 EEO-1 Component 1 data collection is currently open. Employers with 100 or more employees and federal contractors with 50 or more employees have until May 17, 2022, to file their reports with the U.S. Equal Employment Opportunity Commission (EEOC). Although the current EEO-1 form does not expire until June 2023, the EEOC is already contemplating changes to the form. In its Equity Action Plan (dated January 2022 but released on April 15, 2022), the EEOC notes that it will focus on evaluating “whether additional demographic categories should be included in the EEOC’s workforce data collections.” The plan also states the following:
In 2020, the EEOC completed its first historic collection of pay data from private sector employers. The National Academies of Sciences is currently reviewing the data from that collection, which will inform future pay data collection by the agency. The agency will develop near-, mid-, and long-term goals with respect to pay data after receiving the panel’s report.
Clearly, revisiting wage and hour data collection from employers is still on the EEOC’s radar.
An Intoxicating Idea. This week in 1938, Representative Gomer Griffith Smith (D-OK) introduced in the U.S. House of Representatives H. J. Res. 661, which proposed the following amendment to the U.S. Constitution:
“SECTION 1. Drunkenness in the United States and all Territories thereof is hereby prohibited.
“Sec. 2. Congress and the several States shall have concurrent power to enforce the provisions of this Act, and shall fix penalties for violations thereof.”
Perhaps as a reminder to Smith that Prohibition ended in 1933, someone anonymously scribbled the following additional language:
Section 3. That period of time, commonly known as Saturday nights, is hereby stricken from the calendars of the United States, and abolished.”
Section 4. Congress and the several States shall have concurrent power to change human nature from time to time in its or their discretion.”
Not surprisingly, the bill failed to make it out of the House Committee on the Judiciary.