Punching In: Still Waiting for the Starting Bell

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By Chris Opfer and Ben Penn

Monday morning musings for workplace watchers

Postcards from the Labor Board| All Quiet on the OLMS Front | Put the EEOC Harassment Guidelines on a Milk Carton

Chris Opfer: The Senate HELP Committee is scheduled to vote Wednesday on John Ring’s nomination for the crucial fifth seat on the National Labor Relations Board. Ring has some homework to do first.

The management attorney promised lawmakers at a confirmation hearing last week that he’d answer written questions and provide a list of all pending NLRB cases (and those on appeal) that his firm is involved in. I’m going to assume that client list is typed on a long scroll like the one Jack Kerouac supposedly used to write “On the Road.” The document may take a while to read in any format, given the amount of work Morgan Lewis does in labor relations.

The client list has become even more important--at least to committee Democrats--in the wake of an NLRB inspector general report finding that William Emanuel shouldn’t have participated in the recent Hy-Brand case because of his former firm’s involvement in a related matter. The Hy-Brand decision made it harder to show joint-employer liability and was a win for employer groups. The decision had to be scrapped after the report. If Ring is confirmed, the Republican-majority board is likely to eventually revert back to a stricter, direct-control standard for joint employer liability. The NLRB has already asked a federal appeals court to review the Obama-era board’s Browning-Ferris decision. In that ruling, the Democratic-majority board found that even indirect control may be sufficient to show joint employment for collective bargaining and unfair labor practice purposes.

Ring’s 70-plus minutes before the HELP Committee last week were not the most enlightening. He played it close to the vest when asked to weigh in on some of the biggest legal issues before the board, including both joint employment and labor organizing on college campuses.

I would not hold my breath waiting for Ring to be confirmed to the board. The confirmation process has been plodding for the Trump administration. Just ask Pat Pizzella, who was first nominated for the deputy labor secretary job in June and is still waiting for a full Senate vote. The wheels could grind to a halt the closer we get to the midterm elections.

Ben Penn: Empowering the Office of Labor-Management Standards is a traditional team-building exercise between Republican lawmakers and a GOP labor secretary. But more than a year into the Trump administration, there’s still little evidence of action on that agenda item, which involves using OLMS to place greater scrutiny on union—and worker center—finances.

House Education and the Workforce Committee Chairwoman Virginia Foxx (R-N.C.) asked Labor Secretary Alex Acosta to detail his plans for this low-budget office—both in person at a November hearing and in writing on Jan. 18. Foxx wanted to know how Acosta planned to leverage OLMS to ensure that worker organizing centers aren’t skirting the financial reporting obligations typically reserved for labor unions engaged in collective bargaining.

The last we’ve heard, the department has yet to provide a response. Foxx pointed out that Acosta’s Democratic predecessor, Tom Perez, never replied to a similar request. But while Perez, a big union supporter, surely was ideologically opposed to the nature of this oversight letter, Acosta likely just doesn’t have the staff in place.

When we reported last December that ex-NLRB General Counsel Arthur Rosenfeld was awaiting final White House clearance to be appointed OLMS director, it felt like a safe assumption that he’d be installed by March 5. But something appears to be holding up the process. This isn’t a Senate-confirmed position, but it does involve a White House background check. In the absence of a director, the OLMS has been run entirely by career civil servants.

As the Supreme Court is poised in Janus v. AFSCME to issue a decision likely to deplete the treasuries of some unions, perhaps organized labor is getting a reprieve of sorts from a DOL that’s in no rush to begin auditing what’s left of its funding.

CO: Remember when the NLRB and the Equal Employment Opportunity Commission said they were getting together to write guidance on workplace civility issues? Some recent interpretations of federal labor law protections for offensive speech on the job and a separate ban on harassment in the workplace have left employers and their workers between a rock and a hard place. The joint effort to find a way out seems to have hit a snag, possibly thanks to personnel changes at the labor board and a recent decision on employee handbooks.

Former NLRB Deputy General Jennifer Abruzzo was leading the board’s side of the joint guidance talks, but she left the agency. General Counsel Peter Robb—who was sworn in late last year, after news of the joint guidance came out—has yet to say publicly whether he supports it. The guidance may have become less of a priority after the board overturned its decision in Lutheran Heritage in December. The NLRB’s latest decision gives employers more leeway to impose general civility rules without running afoul of federal labor law.

Meanwhile, we’ve been wondering what’s going on with a separate set of anti-harassment guidelines approved by the EEOC last year. Mum has been the word from the White House Office of Management and Budget, which has apparently been sitting on the guidelines since the EEOC sent them in early November. At this point, we’re thinking we may need to print up some “missing” posters and alert the local authorities. Have you seen the EEOC harassment guidelines? Tipsters who provide information leading to the release of the document will be rewarded handsomely. I’ll buy you a coffee.

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.com and bpenn@bloomberglaw.com or on Twitter: @ChrisOpfer and @BenjaminPenn.

Tuesday is the deadline for folks to file comments on the Labor Department’s plan to expand association health plans. We’ve already heard some interesting thoughts from people representing the real estate and franchise industries. Check in with Bloomberg Law’s Madi Alder for more throughout the week.

See you back here next Monday.

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