Beltway Buzz, July 16, 2021

Dems to Push PRO Act in Massive Legislative Package. Congressional Democrats this week announced that they would unilaterally advance a $3.5 trillion “human infrastructure” package (providing for paid family and medical leave, Medicare expansion, and universal prekindergarten education, among other things) along with a bipartisan “traditional infrastructure” package (addressing roads, bridges, passenger and freight rail, waterways, etc.) in the coming weeks.

Here is what’s happening.

• Process matters. First, the infrastructure “deal” is an agreement between Democratic leaders on a top-line budget number, but rank-and-file Democrats in the U.S. Senate and U.S. House of Representatives will still need to approve it. In the Senate, there is no room for error, as one Democratic defector could scuttle the whole thing. There is more wiggle room in the House, but not much—Speaker Nancy Pelosi can afford to lose only three votes. Second, the “deal” is in concept only—a blueprint, but not actual legislative text—which obviously makes it hard to analyze the proposal. The legislative drafting and maneuvering are expected to unfold over the summer.
• PRO Act inclusion? Despite the bill’s not having been written, multiple media outlets are reporting that the Protecting the Right to Organize (PRO) Act will be included in the measure. Exactly how much of the pro-labor PRO Act will be included in the legislation is up for debate. This is because Democrats are seeking to avoid the Senate legislative filibuster by moving the bill through the budget reconciliation process, which has strict—and arcane—rules about which issues can be addressed in the process (primarily issues impacting the federal budget). Thus, Senate rules will likely prohibit much of the PRO Act from being included in the legislative package, though the PRO Act’s provisions authorizing increased employer penalties could potentially get the green light. This is clearly still a very fluid process that we are watching closely. By the way—the Senate Committee on Health, Education, Labor and Pensions (HELP) has scheduled a hearing on the PRO Act for July 22, 2021.
• More pro-labor proposals? Finally, with both the “human infrastructure” and “traditional infrastructure” bills, the Buzz’s Spidey sense is tingling, and we are wary of other potential big labor goodies that might be included. For example, because construction will be a major component of any infrastructure deal, there will likely be efforts to double down on Davis-Bacon Act prevailing wage requirements. The Buzz will also be watching for the potential inclusion of other potential federal contractor requirements favored by labor unions, such as required project labor agreements or union neutrality provisions.

Judge Rejects Challenge to NLRB GC Termination. A federal judge this week rejected an employer’s challenge to the legal authority of National Labor Relations Board (NLRB) Acting General Counsel Peter Sung Ohr—who was appointed shortly after President Joe Biden’s Inauguration Day firing of then-NLRB general counsel Peter Robb—to pursue an injunction against the employer. In addition to noting that the challenged injunction was brought by a regional director on behalf of the Board, rather than on behalf of the general counsel (and was therefore appropriate), the judge determined that the “plain language” of the National Labor Relations Act permitted the president to remove the NLRB general counsel at his or her discretion. Despite the final determination, the analysis of the issue was brief, and the Buzz suspects this will not be the last legal challenge relating to Robb’s removal.

Senate Confirms DOL’s Deputy Secretary. On July 13, 2021, the U.S. Senate voted 50–47 along party lines to confirm Julie Su as deputy secretary of labor. Su previously ran California’s Labor and Workforce Development Agency (LWDA), where she implemented and enforced California’s employment policies. During the nomination process, Republicans criticized Su’s handling of California’s unemployment insurance program while she led the LWDA. While the deputy secretary of labor has traditionally been tasked with many of the internal operations of the U.S. Department of Labor (DOL), many labor and employment policy watchers are expecting Su to have an outsized influence in the agency’s policy initiatives.

Other Nominees on the Move. Su wasn’t the only nominee to move forward in the confirmation process this week, to wit:

• On July 14, 2021, the Senate voted 52–47 to reconfirm Jocelyn Samuels to be a member of the U.S. Equal Employment Opportunity Commission for a term ending on July 1, 2026. First confirmed in September 2020, Samuels has served as the Commission’s vice chair. Samuels’s term expired on July 1, 2021 (though the holdover provisions in Title VII of the Civil Rights Act of 1964 allowed her to remain on the Commission on an interim basis).
• The Senate also confirmed Seema Nanda as solicitor of labor by a vote of 53–46. Republican senators Susan Collins (ME), Lisa Murkowski (AK), and Mitt Romney (UT) joined their Democratic colleagues in voting to approve the former Obama-era DOL official and chief executive officer of the Democratic National Committee.
• The full Senate voted 50–48 to advance the nomination of Jennifer Abruzzo to be NLRB general counsel after the Senate HELP Committee had deadlocked in a party-line vote on her nomination. The next stop for Abruzzo’s nomination is once again the Senate floor—this time for a confirmation vote on her nomination. The Coalition for a Democratic Workplace (CDW) opposes Abruzzo’s confirmation and recently criticized the role that she played in recommending Peter Robb’s removal from his position as NLRB general counsel.
• On July 15, 2021, the Senate HELP Committee held a confirmation hearing on the nomination of David Weil to serve as the administrator of the DOL’s Wage and Hour Division. In a letter sent to Republican and Democratic leaders of the HELP Committee, 14 different business groups expressed concerns about Weil’s policy track record on issues such as overtime regulations, independent contractors, and joint employment.
• The Senate HELP Committee also considered the nominations of union-side attorneys Gwynne Wilcox (nominated to fill the vacant seat on the NLRB) and David Prouty (nominated to fill the seat on the Board that will be vacated when the term of Member William Emanuel expires on August 27, 2021). The CDW issued a statement opposing Wilcox and Prouty, noting, “If confirmed, both Wilcox and Prouty will face conflicts of interest based on their previous employment histories, the organizations they have represented, and the litigation and issues they have previously supported.”

Agencies Move to Implement ARPA’s Multiemployer Fix. On July 12, 2021, the Pension Benefit Guaranty Corporation (PBGC) issued an interim final rule “implementing a new Special Financial Assistance (SFA) Program for financially troubled multiemployer defined benefit pension plans” as provided for by the American Rescue Plan Act of 2021 (ARPA). The ARPA authorizes an estimated $86 billion for lump-sum payments to struggling multiemployer defined benefit pension plans to ensure that those plans are able to make their required benefit payouts for the next 30 years. PBGC’s interim final rule sets forth the process that plans must follow in order to participate in the SFA program, including the conditions on plans that receive funds. The rule became effective on July 12, 2021, and stakeholders have until August 11, 2021, to submit comments.

Bipartisan Anti-Arbitration Bill Introduced. A bipartisan group of lawmakers reintroduced the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act this week. Though text is not yet available, a prior version of the bill had prohibited predispute arbitration agreements relating to workplace sexual harassment. Passing federal legislation is always hard, and getting this bill across the finish line will be no exception, but its important subject matter and targeted approach could make the bill politically attractive to some legislators.

The Art of the Trade: How the Sausage Gets Made. One of the ongoing debates in Congress these days is whether Washington, D.C., should be made a state (the Buzz has discussed this previously). The debate’s roots go all the way back to July 16, 1790, when President George Washington signed the Residence Act of 1790—formally titled “An Act for Establishing the Temporary and Permanent Seat of the Government of the United States”—to establish Washington, D.C., as the nation’s capital. The legislation was the result of deal struck between Secretary of the Treasury Alexander Hamilton and Secretary of State Thomas Jefferson (who also had the backing of Representative James Madison). In exchange for locating the capital along the Potomac River, Jefferson, Madison, and other southern representatives threw their support behind Hamilton’s Assumption Bill, which allowed the federal government to assume states’ debts accumulated during the Revolutionary War. And the amazing thing? No one else was in the room where it happened.