Beltway Buzz, February 4, 2022

PLAs on the Way? President Joe Biden signed an executive order today requiring project labor agreements (PLAs) for all federal construction projects costing more than $35 million. Although the text of the order is not available at the time of this writing, it appears that by requiring PLAs it will go further than former president Barack Obama’s executive order that encouraged PLAs. The executive order is expected to direct work to unionized construction firms as money begins to flow from the recently enacted $1 trillion infrastructure package.

PRO Act Provisions Persist. Washington, D.C.–based employer groups this week may have experienced unexpected flashbacks to the Employee Free Choice Act (EFCA) policy debates of more than 10 years ago. A last-minute addition to the America COMPETES Act of 2022 (H.R. 4521) in the U.S. House of Representatives includes major provisions of the EFCA, namely those providing for union organizing via “card check” and first-contract interest arbitration. More specifically, employers receiving funding under the legislation—as well as their subcontractors—would be required to recognize labor unions that organize via “card check” and would be subject to a mandatory arbitration process that would set the terms of a first-time collective bargaining agreement. Similar provisions are included in the Protecting the Right to Organize (PRO) Act of 2021, but with that legislation stalled in the U.S. Senate, organized labor and its allies continue to seek alternative avenues of enactment (such as, in this case, attaching last-minute language to a bill that concerns semiconductor manufacturing and U.S. competitiveness with China). The Coalition for a Democratic Workplace opposes the eleventh- hour additions to the bill.

How will this all shake out? The America COMPETES Act—which passed along party lines earlier today—is the House’s companion bill to the United States Innovation and Competition Act of 2021 (S. 1260), which passed the U.S. Senate in June 2021. Fans of School House Rock understand that the next step is a conference committee to work out the differences between the two bills. The employer community remains optimistic that these EFCA provisions will not survive the conference, but remains wary due to the potential significant ramifications.

NLRB GC Launches Initiative on Injunctions. On February 1, 2022, National Labor Relations Board (NLRB) General Counsel (GC) Jennifer Abruzzo released a memorandum regarding the use of 10(j) injunctions during union organizing campaigns. The purpose of the initiative established by the memo is “to protect worker rights and deter statutory violations by obtaining Section 10(j) injunctions in the earliest phases of unlawful employer anti-union actions during an organizing effort.” NLRB policies already instruct Board agents to pursue 10(j) injunctions in certain situations involving organizing campaigns, but this new 10(j) policy will also cover “cases where employers swiftly react to organizing efforts with threats or other coercion, even in the absence of other unlawful actions.” As such, the memo is reminiscent of, and ups the ante on, GC Lafe Solomon’s 2010 memorandum setting forth optimal timelines for pursuit of 10(j) injunctions related to unlawful discharges during organizing campaigns.

Reg. Czar Leaves Post. Sharon Block, associate administrator of the Office of Information and Regulatory Affairs (OIRA), announced this week that she was leaving her current position, effective February 1, 2022. Block, who previously served on the National Labor Relations Board, has been running OIRA in an acting capacity since the start of the current administration. As the federal government’s “regulatory gatekeeper,” OIRA plays an outsized role in fashioning federal regulations. The absence of a political appointee at the agency’s helm could therefore have an impact on the administration’s regulatory agenda. The Buzz will be watching.

The RBG Collection. Over the years, former Supreme Court justice Ruth Bader Ginsburg has been the subject of perhaps more final Beltway Buzz “blurbs” than any other individual or subject matter. Well, even after her death in September 2020, RBG continues to stoke the interest of the legal community, as late last week, certain items of her private library were sold at auction. Ginsburg’s annotated copy of the 1957–1958 Harvard Law Review fetched the largest bid, with a sum exceeding $100,000. In light of this development, we are holding on to old drafts of the Buzz. Just in case.