Beltway Buzz, June 8, 2018

Finally, some good news to report from our nation’s capital, as the Washington Capitals won their first ever Stanley Cup last night. Here is your Beltway Buzz.

No Recess for You! Earlier this week, Senate Majority Leader Mitch McConnell (R-KY) announced that the Senate’s August recess would be effectively trimmed to about one week. Washington lobbyists and Capitol Hill staffers probably are none too pleased since August is a prime vacation month to avoid the sweltering Washington humidity (and hot air inside the Capitol). However, there certainly is a lot of work to be done, and McConnell has stated that the Senate will “remain in session in August to pass legislation, including appropriations bills, and to make additional progress on the president’s nominees.”

Senatorial Self-Rhinectomy. While we’re not optimistic, the Buzz is hopeful that curtailment of the August recess will finally result in the long-overdue Senate confirmations of Cheryl Stanton as the next Wage and Hour Division administrator and Scott Mugno as the Occupational Safety and Health Administration’s (OSHA) assistant secretary. For the vacancies at the Equal Employment Opportunity Commission (EEOC), however, the plot has thickened, as several Republican senators are currently blocking a floor vote package that includes Republican nominees Janet Dhillon (nominated for EEOC chair), Daniel Gade (nominated for commissioner), and current Democratic Commissioner Chai Feldblum (nominated for a third term as commissioner). Apparently, the reason for the hold is likely Feldblum’s advocacy of LGBTQ protections, even though Feldblum is not opposed by the business community and would have little power as a minority commissioner. Meanwhile, the agency continues apace with a 2–1 Democratic majority, so these Republicans are ensuring that the EEOC remains in Democratic control.

Ring Sounds Off. Last week, the Buzz discussed the letter that three Democratic senators sent to National Labor Relations Board (NLRB) Chairman John Ring that warned against NLRB rulemaking to resolve the joint-employer issue. Ring answered this week with a well-reasoned letter that doesn’t just respond to the Senators’ letter, but also notifies the regulated community about two upcoming Board initiatives. First, Ring states the Board will soon announce a complete internal ethics and recusal review “to ensure that the Agency has appropriate policies and procedures in place to ensure full compliance with all ethical obligations and recusal requirements.” (The announcement actually was made earlier today.) Second, and perhaps of more importance to employers, Ring announced that a joint-employer rulemaking proposal will issue “as soon as possible, but certainly by this summer.” The Buzz wonders if this pending joint-employer proposal will overtake the Board’s review of its election procedures as an agency priority.

NLRB GC Guidance on Workplace Rules. On June 6, NLRB General Counsel Peter Robb issued a memorandum to the Board’s regional directors on how to address cases involving facially neutral workplace rules as a result of the Board’s 2017 Boeing decision. The memo provides examples of rules that are generally lawful to maintain (e.g., basic workplace civility rules, insubordination/disruptive conduct rules, rules protecting intellectual property, etc.); rules that are unlawful to maintain (e.g., rules prohibiting the discussion of wage, benefits, or working conditions); and rules that are not obviously lawful or unlawful and therefore “warrant individualized scrutiny.” The memo instructs regional directors to refer all cases in this final category to the Board’s Division of Advice.

EEOC Harassment Task Force Returns. This week the EEOC announced that its task force on sexual harassment in the workplace, which presciently issued a report in 2016 on the continuing prevalence of the problem, will reconvene. The first step is a public meeting that will be held on June 11. Of course, the Commission’s amended harassment guidelines are still stuck at the Office of Management and Budget. The Buzz will have more on this next week.

OSHRC Hearing. On June 7, the Occupational Safety and Health Review Commission (OSHRC) heard rare oral arguments in two cases involving the application of the Occupational Safety and Health (OSH) Act’s general duty clause to situations involving heat stress and workplace violence. Ogletree Deakins’ own Arthur G. Sapper presented arguments on behalf of a coalition of business groups that are no doubt hoping that OSHRC will use this opportunity to set some limitations on OSHA’s use of the general duty clause in situations where there are no specific OSHA standards.

Teamsters Jettisoned. Last week, pilots at Flexjet and Flight Options voted to decertify the Teamsters as their bargaining representative in a historic vote. That employees grew weary of an unwanted union isn’t necessarily news, but this case is unique because it is the first time—ever—that pilots voted to decertify an unwanted union under the Railway Labor Act (RLA). Perhaps one reason for this lack of activity is the RLA’s unique decertification process. Prior to 2010, decertification required employees to first vote for a fellow employee to be their representative. This employee would then disclaim interest, leaving the employees free from any union. While the process has since been simplified just a tad, decertifications under the RLA remain few and far between for any employee groups. But perhaps last week’s victory will lead to more frequent attempts by employee groups in the future.

Ruth Bader Goldmine. With the box office success of RBG—the documentary film about Supreme Court Justice Ruth Bader Ginsburg—it is perhaps no wonder that other commercial ventures are looking to take advantage of the popularity and cult-like status of the diminutive justice. In fact, an online funding campaign has already raised well over $100,000 to develop an RBG action figure. The Buzz is pretty sure that RBG is the first member of the Supreme Court to be immortalized in action figure form (though we cannot unequivocally state that there was never, say, a Byron White action figure with Kung Fu Grip). Not bad for the 85-year-old associate justice.