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Punching In: Four Names Emerge for Democratic Labor Board Seat

Nov. 30, 2020, 10:31 AM

Monday morning musings for workplace watchers

Leading Names For NLRB | EEOC Discord | Procurement Revival

Ian Kullgren and Robert Iafolla: Four lawyers have emerged as the leading candidates to fill an open Democratic seat on the National Labor Relations Board once President-elect Joe Biden is inaugurated, according to people familiar with the discussions.

That list includes union-side lawyers, some of whom also could bring diversity to the all-White board: Kent Hirozawa, a former Obama-era board member who practices at Gladstein Reif & Meginniss in New York; Jennifer Abruzzo, a former deputy general counsel at the NLRB who’s a special counsel to the Communication Workers of America; David Prouty, the general counsel for SEIU Local 32BJ; and Gwynne Wilcox, an attorney at Levy Ratner.

Whoever Biden selects would fill the sole vacant seat on the five-member NLRB, though Republicans will maintain the majority until August 2021 when the term of GOP member William Emanuel expires. When Emanuel leaves, Biden is expected to nominate another Democrat to install a Democratic majority—though it’s unclear whether either nominee would be approved by a Republican-controlled Senate.

Discussions are still in the early stages, and most groups have yet to commit to a specific candidate.

AFL-CIO General Counsel Craig Becker signaled during a recent interview his support for those four potential nominees but wouldn’t say who the country’s largest labor federation ultimately would recommend.

“Those are some extremely qualified people,” Becker said. “Kent and Jennifer obviously have considerable experience at the agency. All of them would be exceptional board members.”

Having a diverse candidate for the open NLRB spot is key for the AFL-CIO, Becker said, and he expects it will be front of mind for the Biden team as well. Hirozawa is Japanese-American and Wilcox is African-American.

Abruzzo is also considered a top candidate for general counsel if Biden gets rid of current GC Peter Robb before his term is up in November 2021. Abruzzo has more than two decades of experience at the board, having served as deputy and acting GC. She was also recommended by the AFL-CIO to fill a vacant seat during the Trump administration but was never formally nominated.

Biden’s ability to fill the Democratic seat on the NLRB may come down to the Senate runoff elections in Georgia. If both Democratic candidates fail in the Peach State and Republicans retain control of the Senate, the GOP majority in the Senate could refuse to move any board nominee the new administration puts forward. That would seal Republican control of the NLRB until December 2022.

“If necessary, I’m sure the president-elect is going to use whatever moral and other authority he has to do what was commonplace, which was to allow president to appoint new members and have them confirmed,” Becker said.

Paige Smith: A religious discrimination lawsuit filed by the EEOC against Kroger Co.—involving workers fired after they refused to wear aprons that sported multi-colored hearts—sparked discord between at least one of the agency’s attorneys and its general counsel.

The Equal Employment Opportunity Commission sued Kroger in September on behalf of two workers who believe that wearing an apron embroidered with hearts of several colors violates their religious beliefs against homosexuality. The grocery chain has countered that its four-colored “Kroger’s Promise” logo wasn’t intended to reflect support of the LGBTQ community.

One attorney in the agency’s Office of General Counsel, identified only as Markus in documents obtained by Bloomberg Law, expressed concern that the EEOC stance might allow other workers and employers to use religion to justify discrimination against LGBT workers, religious minorities, or Black workers.

EEOC General Counsel Sharon Gustafson said in response to those concerns in a memo to staff dated Oct. 6 that she doesn’t think the agency is condoning discrimination against LGBT workers.

The EEOC recently voted to update its guidance on workplace religious discrimination, taking into account interpretations of U.S. Supreme Court precedent involving religious accommodations and religious defenses to bias claims.

“All that Kroger needed to do was to permit the employees the requested no-cost accommodations” of not wearing the heart-emblazoned aprons, Gustafson said in her memo. Title VII of the 1964 Civil Rights Act requires employers to provide accommodations requested by a worker based on their religious beliefs, unless that accommodation would impose an undue hardship on the employer.

“This is religious discrimination that violates Title VII,” Gustafson said.

Kroger declined to comment, citing the ongoing litigation. An agency representative also declined to comment.

Ben Penn: If there’s one certainty about Joe Biden’s labor agenda, it’s that the federal procurement process will be a driving force.

Ever since the president-elect first unveiled his laborplatform while campaigning 13 months ago, Biden’s been transparent that he intends to steer federal contracts to companies that ease workers’ path to unionizing, raise their minimum wage to $15, and provide other worker-friendly policies.

Given Republicans are poised to retain their Senate majority, government contracting executive orders are taking on greater prominence than originally thought within the broader Biden-Harris labor policy discussions. Even if Democrats won both Senate runoffs in Georgia, they’d hold the narrowest possible control of the upper chamber, making it tough to advance labor law reform via legislation.

Executive action that bypasses Congress is clearly the focus, multiple advocates tracking the transition say. And the federal procurement process offers a familiar playbook for the Biden team.

The Biden campaign platform specifically cited the Obama DOL’s Fair Pay and Safe Workplaces rule as a project that he wants to “restore and build on.” That September 2016 rule, stemming from an Obama executive order, would’ve required federal contractors to report recent violations of labor and employment laws when bidding on a new or renewed contract worth at least $500,000.

By law, Biden would only be able to rely on the spirit of that past effort without mirroring it too closely. That’s because Trump signed a Congressional Review Act disapproval motion of Fair Pay and Safe Workplaces in 2017, nullifying that rule and blocking a “substantially similar” measure.

To progressives aiming to influence the Biden transition, the CRA motion presents an opportunity to go bolder in the revival—with more enforcement teeth and stronger mandates to boost workers’ organizing, wage, safety, anti-discrimination, and other employment rights. Worker advocates had been strategizing this scenario well before the election. Many in the labor community also weren’t fully satisfied with the Fair Pay version that Obama released, saying it didn’t go far enough to advance workers’ rights.

Organized labor late in the Obama administration even tried to push for a wider “model employer” EO mandating the government only award contracts to companies that affirm workers’ right to unionize in return for a no-strike pledge.

Clearing the CRA’s “substantially similar” hurdle probably isn’t even at the top of the list of legal issues for the Biden transition team pertaining to a new procurement policy. The business community—which sued to persuade a judge to shoot down the Obama Fair Pay order—would take to court any rulemaking that imposes labor and employment requirements on employers through the procurement process.

Management heavyweights threw a slew of legal arguments at the Fair Pay rule, which they rebranded as “blacklisting.” Some of those same objections will prove relevant once again as Biden’s team aims to craft a rule that stands a better chance at surviving litigation.

For instance, the Biden administration is likely to weigh whether a new rule promotes economy and efficiency in the procurement process; isn’t pre-empted by the National Labor Relations Act; and doesn’t violate employers’ right to due process (think being penalized for a violation that hasn’t been fully adjudicated).

How these issues shake out under Biden is a big question mark, but the answers will go a long way to help us understand how far the incoming White House will go to fulfill its workplace goals.

We’re punching out. Daily Labor Report subscribers, please check in for updates during the week, and feel free to reach out to us. See you back here next Monday.

To contact the reporters on this story: Ian Kullgren in Washington at ikullgren@bloombergindustry.com; Ben Penn in Washington at bpenn@bloomberglaw.com; Paige Smith in Washington at psmith@bloomberglaw.com

To contact the editors responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com

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