Punching IN: Spotlight on NLRB, Labor Trade Bureau


PUNCHING IN

Monday morning musings for workplace watchers 

dol0806

By Chris Opfer and Ben Penn

Action on Class Action Waivers | Missing Miscimarra | Big Business for ILAB 

Ben Penn: The National Labor Relations Board has until Wednesday to file a brief in the monumental U.S. Supreme Court battle over the legality of arbitration agreements that ban employee class and collective actions. In Republican hands, the Justice Department has switched teams to join employers in the case – NLRB v. Murphy Oil USA Inc. – which began during the Obama administration. The pressure is on the general counsel’s office to defend the position that the National Labor Relations Act bars such agreements. Oral arguments are slated for October.

No matter which side you’re on, it’s tough to dispute that NLRB General Counsel Richard Griffin (D) has had an outsized role in workplace policy matters over the past four years. With only a few months left before Griffin’s term expires in November, this week’s brief offers him – and his staff of attorneys – perhaps the top remaining opportunity to cement his legacy as an influential pro-worker figure.  

It’s doubtful Griffin will select any controversial cases for NLRB members to review during his remaining tenure. So Murphy Oil might be his best bet to deliver a key victory for the plaintiffs’ bar before the business community begins toasting his exit. 

The board is an independent agency, but putting up a united front with the DOJ solicitor general’s office surely would have helped it win the day. After the acting SG reversed course in June, that raised the stakes for Griffin and his appellate attorneys to submit persuasive arguments. Celine McNicholas, who was the NLRB’s director of congressional and public affairs during the Obama administration, tried to channel her former colleagues’ mindset as they finalize the Murphy Oil brief:

“I would imagine, without having any inside intel, everyone is aware of the significance of this case and what’s at stake for workers and really what’s at stake for meaningful substance of the NLRA itself if this isn’t protected by the court,” McNicholas, now at the left-leaning think tank Economic Policy Institute, told me. “I imagine that the agency feels the weight of their responsibility that they have to advocate for meaningful protections under the act.”

Chris Opfer: Nothing temporarily drains the D.C. swamp faster than an August recess. Congress is on hiatus until September and President Trump is slated to spend the next couple weeks on the golf course in New Jersey.

Lawmakers wrapped up one important piece of labor business before they left town, confirming Marvin Kaplan for a Republican seat on the NLRB. Bill Emanuel, also tapped for a GOP board seat, and Pat Pizzella, nominated for deputy labor secretary, will have to wait in the wings at least another month.

Meanwhile, we’re still waiting to see who catches the Trump administration’s eye for various other labor-related leadership positions, including DOL wage and hour chief and someone to run the Employee Benefits Security Administration. There are also a few more NLRB openings coming up soon. Bloomberg Law’s Lawrence Dube recently reported that Vermont lawyer Peter Robb is in the mix for the general counsel job when Griffin’s term ends. It's becoming common knowledge in labor advocate circles that NLRB Chairman Phil Miscimarra (R) isn’t planning to seek another term when his expires in December. Whoever eventually replaces him will likely be cut from the same cloth, in terms of wanting to use the board’s eventual Republican majority to undo some big-ticket decisions from the Obama era. 

Some management attorneys are still gonna miss Miscimarra when he’s gone.

“The thing that I like about having him as the chair is that he writes these beautiful dissents,” Jackson Lewis lawyer Jonathan Spitz recently told me. “You could count on those as the blueprint for your next petition or even your appeal.” 

BP: Back to my wheelhouse – the Department of Labor. It appears that a final DOL budget for 2018 remains a ways off. As Capitol Hill appropriators vacation, a powerful advocacy coalition is brewing for their return. A collection of unions, Fortune 500 businesses, and nonprofits will be urging the Senate to prioritize funding the Bureau of International Labor Affairs, and communication with staffers has already begun.

The top-line 11 percent cut in DOL spending approved by a House budget panel last month masks a 70 percent chunk out of ILAB’s annual spending. The White House had proposed an even heftier 77 percent cut for the agency that enforces labor rights overseas and plays a role in trade negotiations. The House has passed budget bills with similar ILAB reductions in recent years, meaning the business and labor groups will be focusing their attention on the Senate during and after recess. 

“Business, labor, and key Republicans and Democrats in Congress are all working hard together to underscore the importance and the value that these programs provide to U.S. trade policy, to U.S. competitiveness, and to U.S. worker competitiveness,”Gabriella Herzog, vice president of labor affairs and corporate responsibility at the U.S. Council for International Business, told me of ILAB rescue attempts.

Sen. Tom Harkin (D-Iowa) consistently rescued the bureau from attempts to gut it. But he’s retired, so who’s going to champion ILAB now? Companies such as Gap, Under Armour, Nestle, and Pepsi signed letters of support for ILAB funding earlier this year. Those efforts will escalate in the coming weeks, advocates from the AFL-CIO and the U.S. Council for International Business tell me.    

Meanwhile, Secretary Alex Acosta continued a public speaking tour last week that’s been sticking to the same two-pronged script of requests: Businesses, please participate in Trump’s apprenticeship initiative; and states, please eliminate unnecessary occupational licensing that raises barriers to employment.  

These are both generally bipartisan issues that at least partially overlap with Obama administration policies. Such talking points are safer territory for a secretary who still doesn’t have a single sub-cabinet officer at his side and wants to take a cautious approach before wading into tough, controversial discussions on the future of work, paid family leave, and regulations. Eventually, Acosta will have to get down to brass tacks. 

CO: In case you missed it, the D.C. Circuit weighed in on joint employer liability last week. No, the appeals court still hasn’t issued a decision in the Browning-Ferris case. Instead, a separate panel - featuring Obama Supreme Court pick Merrick Garland - shot down the NLRB’s expanded view of joint employer liability under federal labor law as it applied to news network CNN. Garland isn’t on the panel hearing Browning-Ferris, but his thoughts on CNN may offer a glimpse into how the appeals court eventually decides whether the board exceeded its authority in allowing companies that exercise indirect control over affiliated workers to be tagged as joint employers.

Garland and two judges said the board was wrong when it found that CNN was a joint employer of technicians hired by a service company. Here’s why: The board didn’t go through the same detailed analysis that it did before opting to expand joint employer liability in Browning-Ferris, the panel explained.

“In Browning-Ferris, the Board carefully examined three decades of its precedents and concluded that the joint-employer standard they reflected required ‘direct and immediate’ control,” Garland wrote. He added that an agency has the right to update standards “as long as it provides a reasoned explanation for its change of course.”

We’re punching out. Daily Labor Report subscribers can check in with us during the week for updates and more info on Murphy Oil, Browning-Ferris, and other comings and goings in the labor world.

See you back here next Monday morning.

Bloomberg Law® helps labor and employment law practitioners provide rapid, accurate and complete advice to clients by bringing together trusted, market-leading Bloomberg BNA content like Daily Labor Report® and treatises like Covenants Not to Compete: A State-by-State Survey and The Developing Labor Law, with a fully integrated, innovative legal research platform.  Click here to request a free trial.