Beltway Buzz, April 29, 2022

Senator Asks for Reprise of Federal Contractor “Blacklisting” Order. On April 26, 2022, Senator Bernie Sanders (I-VT) wrote a letter to President Joe Biden urging him to “sign an Executive Order preventing companies that violate federal labor laws from contracting with the federal government.” Of course, this sounds a lot like former president Barack Obama’s Fair Pay and Safe Workplaces executive order, which was rescinded by former president Donald Trump (and whose implementing regulations were repealed by the U.S. Congress in 2017 pursuant to the Congressional Review Act). There are no indications at this time that President Biden is planning to act on this request, but workplace policy watchers have always thought that some “blacklisting” component for federal contractors has always been a possibility in this administration, so this bears watching. In particular, if the Democrats lose the U.S. House of Representatives in November’s midterm elections, relying on the president’s executive authority as a policymaking tool could be an attractive option for the second half of President Biden’s term.

NLRB, Lawmakers, Seek More Money. The Buzz has recently documented the National Labor Relations Board’s (NLRB) challenge with handling an increase in organizing petitions while operating under a stagnant budget. With this challenge in mind, this week 149 members of the U.S. House of Representatives sent a letter on April 28, 2022, to House Appropriations Committee leaders requesting a budget for the Board of at least $368 million for the 2023 fiscal year (beginning October 1, 2022). This would be an increase of $94 million from current levels. Notably, the letter also requests that any funding legislation remove a long-standing provision that prohibits the Board from promulgating any administrative directive or regulation providing for electronic voting in union representation elections.

NLRB GC Wants Coordination with FMCS. In her continuing efforts to collaborate with other federal agencies, NLRB General Counsel Jennifer Abruzzo issued a memorandum on April 27, 2022, instructing regional directors to “integrate the services of the FMCS [Federal Mediation and Conciliation Service] more directly into our processes.” The memorandum directs regions to provide parties (i.e., employers and employees) with notice of FMCS’s services relating to collective bargaining of an initial contract and cases involving allegations of bad-faith bargaining. The memorandum also instructs regional directors to consider requiring FMCS-sponsored training and/or involvement in collective bargaining as potential remedies in unfair labor practice cases.

House Committee Welcomes EEOC and OFCCP Leaders. On April 27, 2022, the House Education and Labor Committee’s Civil Rights and Human Services Subcommittee conducted an oversight hearing on the practices and policies of the U.S. Equal Employment Opportunity Commission (EEOC) and the Office of Federal Contract Compliance Programs (OFCCP). Amidst much political back-and-forth, the Buzz noted a few highlights:

• EEOC Chair Charlotte Burrows emphasized that she believes employee pay and hours worked data collected via the EEO-1 form would be useful to the Commission’s mission.
• The tension between Title VII of the Civil Rights Act of 1964 and the NLRB’s expansive definition of protected concerted activity remains a thorny legal (and political) issue.
• OFCCP Director Jenny Yang singled out the construction industry as a top enforcement priority, and she noted that the recently enacted infrastructure law would likely lead to a significant increase in the number of construction employers that will fall under OFCCP’s jurisdiction.

POTUS Withdraws OSHRC Nominee. On April 25, 2022, President Biden withdrew the nomination of Susan Harthill to be a member of the Occupational Safety and Health Review Commission (OSHRC), which adjudicates workplace safety and health disputes between the U.S. Department of Labor and employers. Harthill was first nominated in September 2021, and her nomination was twice approved by the U.S. Senate Committee on Health, Education, Labor, and Pensions. With the withdrawal of Harthill’s nomination, the three-member review commission will continue to operate with Obama-appointee Cynthia L. Attwood and Trump-appointee Amanda Wood Laihow.

RIP, Senator Hatch. Former United States senator Orrin Hatch passed away on April 23, 2022, at the age of eighty-eight. Senator Hatch’s forty-two-year run representing Utah in the U.S. Senate made him the longest-serving Republican senator in history (five Democratic senators have served longer than Hatch, with Senator Robert Byrd (D-WV) serving the longest, at more than fifty-one years). As a freshman in the Senate (his first elected political office), Hatch led a five-week filibuster against the 1978 Labor Law Reform Act, defeating six cloture votes and eventually killing the bill. The bill would have codified expedited union elections, included new damages provisions for labor law violations, provided outside union organizers with access to employees during working time, allowed for preliminary reinstatement of certain discharged workers, and added two members to the five-member NLRB. Does any of this sound familiar? Senator Hatch’s effort almost forty-five years ago had labor policy reverberations that are still being felt today.

The Beltway Buzz will be on hiatus on May 6, 2022, as we will be attending Ogletree Deakins’ 2022 National Workplace Strategies Seminar in Phoenix, Arizona.