Punching In: The End of the Labor Board Ethics Affair?

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By Chris Opfer and Ben Penn

Monday morning musings for workplace watchers

EEOC Nomination Chess Game | What About Wellness? | Worker Center Hawks Take Manhattan

Chris Opfer: Will the Boeing case wrap up ongoing conflict-of-interest questions at the National Labor Relations Board? A day before a group of workers at the aerospace giant’s South Carolina facility voted to unionize, a three-member panel unanimously declined Boeing’s request to freeze the march to the ballot box. The one-sentence ruling wasn’t much of a surprise, but some folks may have done a double take when they saw Member Bill Emanuel’s name on the decision.

NLRB ethics official Lori Ketcham cleared Emanuel to participate in the ruling, a board spokesperson told me last week.

The NLRB still hasn’t ruled on a six-month-old filing in a separate Boeing case in which a painter’s union lawyer argued that Emanuel should have sat out the case because his former firm (Littler Mendelson) represents the company in other matters. David Rosenfeld said there was at least an appearance of conflict, given that Emanuel left Littler only about three months before the decision. The board’s radio silence in response left some wondering whether Rosenfeld might be on to something.

Emmanuel getting the all-clear to vote on the Boeing case might be bad news for the workers and their union, which are likely in for a prolonged legal fight before the company even considers bargaining with the group. It means the board’s Republican majority will decide Boeing’s challenge to the bargaining unit, a group of 178 workers the company says was “gerrymandered” from the some 7,000 employees at the facility. The board in December reverted to a more stringent approach to “micro-unit” organizing.

The green light for Emanuel also seems to clarify the line somewhat between cases that board members can and can’t participate in given their connections.

Of course, I wouldn’t expect Sen. Elizabeth Warren to retract her calls for Emanuel to resign over his involvement in two big joint employer cases, which NLRB Inspector General David Berry said he should have sat out. Some critics of the board’s decision to address joint employment via regulation will also likely have more to say about their ethics concerns.

But the conflicts questions aren’t likely to stop the joint employment regulation or prevent the board from taking a close look at whether the Boeing workers unit should have been been expanded to include additional employees.

Ben Penn: Speaking of Sen. Warren, she’ll have a chance to continue hammering the Trump NLRB’s rulemaking posture tomorrow when she delivers remarks at a symposium on Trump-era deregulation hosted by the Coalition for Sensible Safeguards.

The other two major workplace agencies haven’t provided as much fodder recently for Warren and her fellow Dems to rail against the Trump administration. One reason why is that those agencies—the Labor Department and the Equal Employment Opportunity Commission—are still missing some of the leaders necessary to overhaul policies that Democrats supported.

I’ll allow others to ascribe blame to a particular lawmaker or political party for obstructing the confirmation process, thereby stalling the policy developments at these agencies. The fact remains that the Senate for months now has failed to confirm the president’s picks to lead the DOL’s Wage and Hour Division and Occupational Safety and Health Administration, as well as three nominees to sit on the five-member EEOC and one to serve as its general counsel. And as we get closer to the midterms and the judiciary nominees maintain their stranglehold on Leader Mitch McConnell’s Senate calendar, don’t expect new folks to arrive at DOL and the EEOC any time soon.

But there’s a unique set of circumstances involved in the EEOC personnel holdup that we’ll be examining in more detail later this week. Unlike the DOL nominee duo of Cheryl Stanton (WHD) and Scott Mugno (OSHA), who would take up to 30 hours of Senate floor time each, the president’s choices for the EEOC would seem to have a reasonable shot at expedited confirmation. This would come via a package deal allowing for a fast vote on all four at once, without eating up any precious floor time. This so-called unanimous consent process would get Democratic cooperation because one member of that foursome, Chai Feldblum, is a Democrat who was originally selected by President Obama for EEOC commissioner.

Yet Mitch isn’t allowing that vote to take place out of respect for Sen. Mike Lee’s hold on Feldblum, as we discussed in this space in March. Over the past few months, the Utah Republican’s opposition has spread to at least three other members of his caucus who have also placed a hold on Feldblum’s nomination, several business lobbyists tell me. The D.C. trade association community is now trying to find a workaround by scheduling meetings with those senators to impress upon them the importance of getting the EEOC fully constituted quickly.

Remember, the other two commissioner selections—Janet Dhillon and Daniel Gade—are Republicans, so they would deliver the first GOP-majority EEOC of the Trump administration. Trade groups want to see it get down to business ASAP. They say keeping Feldblum for a new five-year term rather than starting over with a new nominee, as Lee has advocated for, is the only way to keep things moving.

Yet the social conservative groups who oppose Feldblum because of her advocacy for LGBT workplace protections have exerted pressure on Lee and others to block her confirmation. That leaves us with a stalemate, which is derailing the agenda of the business-minded Republicans who are optimistic about a more employer-friendly attitude from the new commission.

CO: We mentioned recently that the EEOC’s sexual harassment guidance appears to be on hold until the Senate sorts out those nominations. It’s widely believed that the White House Office of Management and Budget has pressed the pause button because it wants Dhillon and Gade (and maybe EEOC general counsel pick Sharon Fast Gustafson) to have a say in how the agency approaches the hot-button issue. The freeze couldn’t have come at a worse time, given all the attention that bad behavior in the workplace is getting in the #MeToo era.

The guidance isn’t the only agency initiative likely to be gummed up by the sluggishness of the confirmation process. The EEOC also has to sort out what it’s going to do with the employee wellness plan rule, which a federal judge put on hold last year. The goal of the regulation is to balance employers’ interest in offering incentives to workers who participate in those plans without forcing them to hand over private, medical information. The question is: How much of a worker’s health insurance costs can a company pick up as part of a wellness plan while still ensuring that participation is voluntary?

The EEOC currently has a new/revised wellness plan rule slated for no earlier than January 2019, according to its regulatory agenda. Agency lawyers also told the judge that the commission is waiting for a new chair and commissioner before it makes any changes official. Because the judge’s order kills an important part of the Obama administration rule if it isn’t revised by New Year’s Day next year, the EEOC will probably be starting from scratch.

BP: Chris, you may encompass Punching In’s New York bureau, but today I’m stepping on your turf to preview a Big Apple fast food legal battle with nationwide implications for worker centers and other union-aligned nonprofits. The case might very well be decided by this Friday.

Some of you may remember that New York City passed a law in 2017 allowing fast food workers to donate a portion of their paycheck to a nonprofit organization of their choosing through automatic paycheck deductions. The SEIU-backed organization Fast Food Justice announced last year that it had 1,200 signatures of New York employees ready to hand over $13.50 a month.

But the law has yet to take effect because the National Restaurant Association sued the city, alleging that the new statute violates restaurants’ First Amendment rights by forcing them to financially support nonprofit advocacy positions they disagree with, such as a $15 minimum wage.

A federal judge in New York has a deadline of June 8 to issue a decision, or the pause on enforcement would be lifted and Fast Food Justice and any other nonprofit could begin collecting donations. Technically, the parties could agree to extend the deadline, as they have already allowed on several occasions, but attorneys I spoke with are now cautiously optimistic that we’ll get an opinion sooner rather than later.

Why does this matter? Because the alt worker organizing movement is still searching for a viable funding mechanism. Worker centers’ evolving model for delivering employees a voice on the job lacks one critical feature: membership dues. A ruling in favor of New York City in this instance by no means guarantees voluntary deductions bills will pop up across the country. But it would surely mark a victory in the groups’ long slog of a quest for economic sustainability.

CO: We’re punching out. Daily Labor Report subscribers can check in during the week for updates. In the meantime, feel free to reach out to us: copfer@bloomberglaw.comand bpenn@bloomberglaw.com or on Twitter: @ChrisOpfer and @BenjaminPenn.

Bloomberg Law’s Tyrone Richardson is watching the votes in California’s primary elections tomorrow. That includes a couple of contests with possible labor policy implications. Ty is also keeping an eye out for the Labor Department’s updated contingent worker survey, due out this week.

See you back here next Monday.

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