Nomination News. With control of the U.S. Senate in 2023 up for grabs, the Biden administration continues its push to fill agency leadership positions. Late last week, the Senate confirmed attorney Lisa Gomez to run the U.S. Department of Labor’s (DOL) Employee Benefits Security Administration. The vote represented a second chance for Gomez: in June of this year, her confirmation vote failed when Vice President Kamala Harris was unavailable to break a tie vote. Still awaiting confirmation are Jessica Looman (nominated to serve as administrator of DOL’s Wage and Hour Division) and Karla Gilbride (nominated to serve as general counsel of the U.S. Equal Employment Opportunity Commission (EEOC)), but as the Buzz recently reported, their votes keep getting postponed. Finally, there is no update on the status of EEOC commissioner nominee Kalpana Kotagal.
SCOTUS to Review Union’s Destruction of Employer’s Property. This week, the Supreme Court of the United States kicked off its 2022–2023 term (more on that below). On the first day of its new term, the Court agreed to hear a case concerning whether the National Labor Relations Act (NLRA) preempts an employer’s claim that a union intentionally destroyed its property during a strike. The employer in the case, a ready-mix concrete company, sued the union representing its workers alleging that the union deliberately timed its work stoppage to occur shortly after the employer’s mixing trucks were loaded for delivery. As a result, the concrete hardened and became unusable. The Washington Supreme Court held that the claim was preempted by the NLRA, and the employer appealed. If the Supreme Court does not reverse, the concept of “economic weapons” deployed during the bargaining process will take on new meaning, and certain employers could be left without recourse if unions intentionally destroy their property, products, tools, or equipment.
NLRB: Dues Checkoff Continues After CBA. As expected, the National Labor Relations Board (NLRB) continues to reverse Trump-era Board rulings to tilt the labor-management landscape in favor of unions. This week, the Board released a decision requiring an employer to continue a contractual union dues checkoff clause, even after the collective bargaining agreement (CBA) had expired. The majority reasoned that “a dues-checkoff provision properly and reasonably belongs in the broad category of mandatory bargaining subjects that Section 8(a)(5) of the Act bars employers from changing unilaterally after the expiration of a contract, rather than in the small handful of exceptions to the rule.” Dating back to 1962—except for a brief four-year period beginning in 2015—Board jurisprudence had held that the requirement to remit union dues was a creature of contract and therefore expired along with a CBA. In this recent case, the Board reverted to that anomalous four-year period in its history. The Board will apply the new policy retroactively in all pending cases.
NLRB: Petitions Are Up. The federal government’s 2021–2022 fiscal year wrapped up on September 30, 2022. Since then, the number crunchers at the NLRB have counted a total of 2,510 union representation petitions that were filed during that time period. This is a 53 percent increase from the 1,638 petitions filed in the previous fiscal year.
Federal Court Strikes Down EEOC’s Bostock Guidance. On October 1, 2022, the U.S. District Court for the Northern District of Texas vacated a June 15, 2021, EEOC technical assistance document “explaining ‘what the Bostock decision means for LGBTQ+ workers (and all covered workers) and for employers across the country.’” The court reasoned that the Commission “misread Bostock by melding ‘status’ and ‘conduct’ into one catchall protected class covering all conduct correlating to ‘sexual orientation’ and ‘gender identity.’” The court also ruled that the Commission had made several procedural mistakes, including issuing what the court determined was a substantive rule, even though the Commission lacks such rulemaking authority under Title VII of the Civil Rights Act of 1964.
Monday Morning You Sure Look Fine. As mentioned above, the Supreme Court kicked off its current term on Monday, October 3, 2022. The annual “First Monday” tradition—or more accurately, requirement—has evolved over the years. The Judiciary Act of 1789 required the Court to meet in two separate sessions each year, one beginning on the first Monday of February, and the other beginning in August. Beginning in 1802, the U.S. Congress eliminated the second session and began to move the start back from February to January and then to December. In 1873, Congress moved the start date to the second Monday in October. Finally, in 1916, as part of a broader reform effort to add more cases to the Court’s docket, Congress settled on the first Monday in October for the start of the Court’s term.