Beltway Buzz, August 9, 2019

NLRB Proposes Election Changes. On August 9, 2019, the National Labor Relations Board issued a notice of proposed rulemaking (NPRM) that proposes three specific amendments to its election procedures.

1. Blocking Charges. The Board proposes to replace the existing blocking charge policy (that usually allows labor unions to indefinitely block decertification elections) with a “vote and impound” procedure that allows elections to move forward while impounding the ballots until a determination is made regarding the unfair labor practice charge.
2. Voluntary Recognition Bar. The Board proposes to provide employees with a 45-day window to petition for a secret ballot election after the employer has voluntarily recognized the union.
3. Section 9(a) Recognition in the Construction Industry. The Board proposes to redefine the evidence required to prove that an employer and union in the construction industry have established a voluntary majority-supported collective-bargaining relationship.

These changes are in line with what the Board forecasted in its submission in the Spring 2019 Regulatory Agenda. Moreover, they are consistent with the “piecemeal” approach to overhauling the 2015 changes to the election procedure that Chairman John Ring previously forecasted. The Buzz will be watching to see if the Board will propose amendments to other aspects of the election procedures—such as the statement of position and hearing date requirements—in the future. Comments will be due 60 days from publication in the Federal Register (likely next week), which means the deadline will be sometime in early to mid October.

New GC Takes the Reins at EEOC. On August 8, 2019, Sharon Fast Gustafson was sworn in as general counsel of the Equal Employment Opportunity Commission (EEOC). Gustafson, who is the first woman to serve as general counsel of the Commission, steps into a role that had been vacant for 972 days. The Buzz will be watching to see how Gustafson impacts the EEOC’s litigation program.

EEOC Background Check Guidance Injunction Upheld. Speaking of EEOC litigation, on August 6, 2019, the U.S. Court of Appeals for the Fifth Circuit upheld an injunction that blocks the EEOC from enforcing its 2012 criminal background check guidance against the state of Texas. The Buzz thinks the decision is noteworthy for two reasons. First, politics and events have, in some ways, eclipsed the controversy that accompanied the issuance of the guidance when it was released in 2012. Indeed, while background checks can still play an important role in employment decisions for certain positions and industries, many employers and business groups are now committed to including individuals with criminal backgrounds in their recruiting process. Second, the Buzz wonders whether the decision could potentially have a chilling effect on agency efforts to craft policy via guidance documents, memoranda, frequently asked questions (FAQs), etc., as opposed to the formal rulemaking process.

DOL Issues More Opinion Letters. On August 8, 2019, the U.S. Department of Labor’s (DOL) Wage and Hour Division (WHD) issued three new opinion letters covering specific circumstances under both the Family and Medical Leave Act and Fair Labor Standards Act. This brings the total number of opinion letters issued by this WHD to 46 (including 17 that were drafted toward the end of the George W. Bush administration but were subsequently withdrawn by the Obama DOL).

H-1B Clients Made Public. Pursuant to changes made to the Labor Condition Application in 2018, the DOL’s Office of Foreign Labor Certification is now publishing the names of “secondary entities” (i.e., clients) at which H-1B visa holders work, even though they are employed by a different entity. As the Buzz previously mentioned, this disclosure could complicate agreements between H-1B employers and their clients, and it raises competitiveness issues as well (not to mention legal liability). The publication of this information is further evidence of the administration’s increased scrutiny on the H-1B visa program.

PBGC Hurtles Toward Insolvency. Three things in life are certain: death, taxes, and looming insolvency at the Pension Benefit Guaranty Corporation (PBGC). This week the PBGC issued its Fiscal Year 2018 Projections Report, which concludes, “The Multiemployer Program is estimated to have a 99 percent likelihood of insolvency in FY 2025 and a 100 percent likelihood in FY 2026.” The current multiemployer system covers 10.6 million participants in approximately 1,400 plans, and 125 of those plans—according to the report—are in “critical and declining status.” Unfortunately, as the Buzz recently discussed, a quick congressional fix for this dire situation isn’t likely because our representatives are experts at brinkmanship and often wait to act until the last minute, and the likely solution—some combination of reductions in benefits combined with loans—gives neither political party a clear victory, thus creating a stalemate.

A First Time for Everything. Article II, Section 2, of the U.S. Constitution states that the president “shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law.” High-profile events over recent years have highlighted this important constitutional function of the U.S. Senate. But the Senate’s outsized role in executive branch nominations isn’t a recent phenomenon. Rather, it is a tradition that turned 230 years old this week, going all the way back to August 5, 1789—the date on which the Senate rejected a presidential nominee for the first time. Prior to nominating Benjamin Fishbourn to the post of naval officer for the Port of Savannah, President George Washington failed to consult with Senator James Gunn of Georgia. Gunn preferred a buddy of his for the post and lobbied his fellow senators to reject Fishbourn. Washington was pretty irritated and responded with a letter to the Senate that basically said, “Jeez. I wish you guys woulda told me beforehand.”