Monday morning musings for workplace watchers
Shutdown Layoffs Round 2? | Restored NLRB’s Power Over States
Ian Kullgren: Groundhog Day may be weeks away, but we’re already hurtling toward another government shutdown fight that might make you feel like you’re stuck in a time loop.
The November funding deal that ended the longest shutdown in government history and reversed President Donald Trump’s cuts to the federal workforce expires Jan. 30, meaning Congress will have to strike another deal to avoid a shutdown redux—which, as we know, is no sure thing.
That’s bad news for federal workers and their Democratic allies, to say the least. Another shutdown would give White House budget director Russell Vought a chance to impose a second round of cuts, likely larger and more exacting than the first.
Much remains unresolved legally, making matters murkier. The November appropriations deal failed to address the underlying question of whether the president can fire workers en masse during a shutdown. The White House, for its part, says it has no legal obligation to carry out discretionary programs—or to continue employing the people who run them—if Congress lets funding lapse. Courts have expressed skepticism of that interpretation but haven’t given a clear answer.
Where we are now: Judge Susan Illston of the US District Court for the Northern District of California froze the RIFs, but only until the funding deal’s expiration. She also dinged the administration for conducting RIFs at the departments of State and Education, and at a few other agencies, in an apparent violation of the legislation. The Trump administration had argued those cuts were initiated before the shutdown, and therefore didn’t count.
The US Court of Appeals for the Ninth Circuit temporarily reversed part of Illston’s order that required the government to issue revocation notices to workers, but didn’t weigh in on the broader legal questions. On Friday, the court granted the government’s request to dismiss the appeal; the administration didn’t state a reason in its motion, but for now, the case continues in the district court’s hands.
Unions representing the workers could once again face an uphill battle with the Supreme Court, which last summer allowed other workforce cuts to proceed while a legal challenge played out.
As for the Hill, things aren’t looking good as Congress returns today. The Senate failed to hold an initial procedural vote on a GOP budget proposal before skipping town for the holidays, and now has just 20 working days to get something across the finish line.
“The summer was wasted, December was wasted,” Rep.
Khorri Atkinson: The National Labor Relations Board’s restored quorum deals a blow to state legislative efforts to assume authority over private-sector labor disputes traditionally managed by the federal agency.
California and New York initially justified their laws as temporary fixes to address the five-member NLRB’s inability to fully function after losing its quorum when Trump fired Democratic board member Gwynne Wilcox in an unprecedented move.
But the Senate’s mid-December confirmation of NLRB career attorney James Murphy and former Boeing Co. chief labor counsel Scott Mayer to the board “certainly reduces the urgency” and justification for the laws, and further underscores their conflict with federal preemption, said Joshua Fox, a partner at Proskauer Rose LLP.
With Murphy and Mayer joining, the NLRB can now address its case backlog, issue decisions, and pursue a more business-friendly policy agenda after nearly 11 months without a quorum.
The legal vulnerability of these state laws increased when two district judges in California and New York sided with the NLRB and Amazon.com Services LLC, respectively, to temporarily block the states’ labor boards from taking over private-sector labor disputes. The NLRB’s separate legal bid to block the New York law remains pending.
The National Labor Relations Act preempts the state laws, as the federal statute grants exclusive authority to the NLRB to oversee union elections and adjudicate unfair labor practice charges involving private employers that conduct interstate commerce, the judges said. The Supreme Court’s 1959 San Diego Building Trades Council v. Garmon decision holds that states are preempted from regulating such labor issues.
State lawmakers and some legal scholars previously told Bloomberg Law that state regulators aren’t required to defer to a federal agency if it’s incapacitated, such as when it lacks a quorum. Massachusetts is currently considering legislation that would allow the state’s labor board to handle private-sector union matters where the NLRB lacks jurisdiction.
With the quorum restored, the agency appears better positioned to challenge these statutes as interfering with its authority and violating federal supremacy, Fox said.
The parties in the cases didn’t immediately respond to requests for comment.
We’re punching out. Daily Labor Report subscribers, please check in for updates during the week, and feel free to reach out to us.
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