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Punching In: A Tale of Three Labor (Related) Disputes

Feb. 3, 2020, 10:46 AM

Monday morning musings for workplace watchers

NLRB Watchdog Watch| Mile-High Delta Turf Battle | Construction Defends Apprenticeship Carveout

Chris Opfer: Discrimination and harassment complaints against National Labor Relations Board Inspector General David Berry exposed a rift between the NLRB’s watchdog and its political leadership. Now, they’re also creating friction between NLRB Chairman John Ring (R) and Labor Department Inspector General Scott Dahl, who heads a federal inspectors general oversight committee that looked into the complaints and said there was “insufficient evidence” of wrongdoing.

The Equal Employment Opportunity Commission is investigating the complaints, in which three career officials separately alleged Berry “bullied” them during investigations. Those allegations also have caught the attention of Sen. Chris Van Hollen (D-Md.) and Rep. Anthony Brown (D-Md.), who want to know what Ring and General Counsel Peter Robb are going to do to protect Berry’s accusers.

Here’s the latest: Berry, with Dahl’s apparent backing, says the NLRB and the EEOC don’t have the authority to consider whether he violated federal workplace discrimination law. That raises the thorny issue of who polices the conduct of a federal inspector general.

Ring and Dahl traded sharply worded letters last month, in which they disputed the jurisdiction question. The crossfire included barbs about “inaccurate statements,” with each official accusing the other of specious descriptions of the depth of the oversight committee’s investigation into the complaints, its findings, and its legal analysis.

Efforts to track the various disputes stemming from the complaints against Berry risk quickly devolving into some sort of Abbott and Costello bit. While the EEOC probes and related spats play out, there’s still the matter of how the board handles member conflicts of interest, which Berry brought new attention to shortly after Republicans took control of the board under President Donald Trump.

The board recently released lists of employers and labor unions that pose conflicts of interest requiring NLRB members to sit out certain cases involving those entities. The publication of that information followed through on a promise Ring made in November. It was meant to make the NLRB’s conflict-of-interest review process more transparent.

Republican Members Bill Emanuel and Marvin Kaplan have little to report, since they’re now outside of the two-year window in which appointees are required to recuse themselves from matters involving former employers and clients. Ring’s recusal list features Google, Amazon, Marriott, Pratt & Whitney, and the U.S. Postal Service, which is a frequent flier when it comes to unfair labor practice complaints filed with the board. His two-year recusal period ends in April.

Jaclyn Diaz: Things can get a little stuffy at 35,000 feet, especially when two unions are vying for the support of the same group of airline workers. The Association of Flight Attendants and the International Association of Machinists got in a tizzy about organizational jurisdiction over Delta Airlines workers, like two travelers bickering over space in the overhead compartment.

AFA announced last year it would try to organize Delta workers, even though IAM had the same goal. The latter filed a complaint with the AFL-CIO over the former—both are member unions—alleging interference.

AFA recently took to the web to clear the air. The union created a new website last week, which popped up on our colleague Andrew Wallender’s radar. There, the AFA says it hasn’t been censured by the AFL-CIO over the flap.

An AFL-CIO hearing panel determined Jan. 17 that the Flight Attendants didn’t interfere in the Machinists’ organizing campaign, the AFA says. The panel determined nothing stood in the way of the AFA organizing the airline’s workers when it started its own campaign Nov. 1, according to the web posting. That’s because the period in which the AFL-CIO had given the Machinists the exclusive right to organize Delta workers expired a week before AFA launched its campaign.

Despite the dispute, the two unions can perhaps find common ground in backing the Protecting the Right to Organize Act (H.R. 2474). The House is set to take the bill up later this week.

A vote to approve it is likely, but that doesn’t mean the long-term effort behind this legislation will go quietly into the night. Unions are saying the bill will be a litmus test in the fall elections, and Democratic lawmakers promise the legislation is a priority for the long haul.

Ben Penn: The Trump administration’s prized apprenticeship initiative took a crucial step closer to completion last week when the Labor Department transmitted its final implementing rule to the White House regulatory shop, the last stage in the review process.

That opens a fresh line of questions about Industry-Recognized Apprenticeship Programs before the new workforce training system can finally get off the ground.

During the lead-up to DOL releasing the proposed rule last year, a brouhaha broke out between officials at the Labor Department and the White House over whether to include the construction industry in the project.

The building trades unions and construction company lobbyists each tried to influence the rule’s language, and related dustups involved officials in multiple White House offices. The proposal ultimately excluded builders, an effort to preserve their robust participation in the separate, longstanding registered apprenticeship system.

The construction industry carveout was supported by then-Labor Secretary Alex Acosta and North America’s Building Trades Unions. But the question now is whether the carveout will make it into the final rule, which is being overseen by new DOL head honcho Gene Scalia.

Fearing an about-face, the building trades mounted an intense campaign to membership and the general public. They warned that if the final rule opens IRAPs to the construction industry, it would be tantamount to the White House attacking the Davis-Bacon Act, which requires certain minimum pay rates on federal construction contracts. Their reasoning is that inclusion in the final rule could foster proliferation of nonunion construction projects relying on cheap labor from apprentices.

I’m not convinced the final rule entering review at the White House will ditch the controversial exclusion. The blue-collar unions, whose members the Trump re-election campaign will be wooing this fall in key Rust Belt states, have already made their point clear to the administration: We stand ready to turn construction workers against Trump at the ballot boxes.

NABTU’s political potency is up for debate, but it’s quite possible the president’s team has already decided this isn’t a risk worth taking.

The construction unions may not be as keen to pick a fight with the White House these days, fresh off passage of the U.S.-Mexico-Canada Agreement, which rebooted NAFTA, at the behest of unions, to include stronger labor terms.

Besides, where’s all the business lobby muscle trying to persuade the administration to reverse course? The Associated Builders and Contractors, Associated General Contractors of America, and a few other trade groups likely will continue their advocacy, but the U.S. Chamber of Commerce has been noticeably absent. The Chamber didn’t even submit public comments on the IRAP proposal. One corporate heavyweight, the American Petroleum Institute, even wrote DOL a comment letter urging the construction exclusion be maintained to preserve the registered apprenticeship system for workers in the natural gas and oil industries.

The most likely area of contention isn’t even included in the rulemaking. Rather, it involves how the project will be funded and Congressional consideration of whether the department fully corrected its misuse of federal dollars last year to support IRAPs instead of registered programs.

Finally, the revolving door at the Frances Perkins Building has been particularly active so far in 2020. Scalia expanded his team in January with political hires such as senior legislative officer Adam Turner in the Office of Congressional and Intergovernmental Affairs and special assistant Sophia Cabana in the Office of Public Liaison, according to a DOL spokeswoman. And today, the crew grows by two with Andrew Nixon starting on the advance team and Jordan Goldstein reporting to the secretary’s office. One departure to note is Emily Hoffman, former director of scheduling, who left recently for a job at SoftBank.

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. See you back here next Monday.

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To contact the reporters on this story: Jaclyn Diaz in Washington at jdiaz@bloomberglaw.com; Chris Opfer in New York at copfer@bloomberglaw.com; Ben Penn in Washington at bpenn@bloomberglaw.com

To contact the editor responsible for this story: John Lauinger at jlauinger@bloomberglaw.com

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