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Punching In: The Latest from the Labor Board, Update on Overtime

Aug. 26, 2019, 10:00 AM

Monday morning musings for workplace watchers

And Then There Were Three? | DOL Labor Day Comes Early |Calendar Considerations, ‘Quickie’ Elections

Chris Opfer: The National Labor Relations Board could be busy in the last few months before its only Democrat is set to leave Half Street.

Member Lauren McFerran’s first term draws to a close December 16. McFerran is said to be interested in another five-year stint on the board, but the seat could stay open for awhile. A second Democrat seat has continued to collect dust since Mark Pearce’s term expired nearly a year ago. Those posts are not exactly at the top of Senate Majority Leader Mitch McConnell‘s priority list, so expect to see the remaining Republican NLRB members running the three main weave for a good chunk of next year.

There is recent precedent for leaving the minority party’s NLRB seats unfilled: Three Democrats had the board to themselves for a nearly eight-month stretch during the Obama administration. By removing the voices most likely to dissent, the board likely will be able to speed up a wide range of case decisions.

In the meantime, the NLRB is expected to look to churn out a number of decisions while McFerran is still on the job. It is a long-held tradition at the board that the end of a member’s term comes with a flurry of activity. That’s because the board will otherwise have to restart its review of any cases that McFerran is involved in but which are not decided before she leaves.

“The agency places emphasis on avoiding carryover cases,” former Chairman Phil Miscimarra (R) recently told me. Miscimarra’s own run at the board ended in a whirlwind of decisions overturning Obama-era precedent. “Those cases waste significant resources because a lot of the work previously devoted to the case has to be redone. Carryover cases also cause parties to experience a significant further delay—sometimes more than a year—before their dispute gets decided by the board.”

Ben Penn: This upcoming Labor Day marks the 125th anniversary of America’s first formal celebration of organized labor as a national holiday.

We’re expecting acting Labor Secretary Pat Pizzella to be honoring the anniversary later this week. Details are TBA so I’m not sure if it’ll be worth canceling your beach plans to attend, but Pizzella’s past clashes with the labor movement might make this week’s party an interesting one.

(Side note: in light of last week’s news about Gene Scalia’s 2003 dustup over the United Brotherhood of Carpenters, the department might want to send an invitation over to the UBC union hall. The Carpenters’ co-founder Peter McGuire is credited in some circles for hatching the original idea of a national labor holiday back in 1882.)

The acting labor chief’s pals in the business community would surely prefer he forgo any symbolic holiday rituals and instead hold a ribbon-cutting ceremony to release the Trump overtime rule. Currently under final review at the White House, there’s already been speculation that the administration is targeting a Labor Day week release. The final rule has only been sitting at OIRA for two weeks. For an economically significant regulation that will require extra legal scrutiny to shore up defense from the lawsuit that awaits it, I anticipate we’ll be waiting another few weeks.

The regular rate and joint employment rules are top priorities of the White House and DOL as well. We can add tip pooling and fluctuating workweek to the mix. Plus, the agency is nearing the release of that mysterious request for information on updating the Family and Medical Leave Act, teeing up a potential second-term regulation.

That’s quite a few big ticket actions flowing from one DOL agency, the Wage and Hour Division, and the office has been staffing up accordingly. Lost in WHD Administrator Cheryl Stanton’s reorganization last week was the fact that she now has five senior policy advisers reporting to her, bringing the agency’s political staffing more or less on par with its Obama administration level.

Among the rookies is Andrew Rogers, who spent the past seven years defending employers in wage-hour matters at the prominent law firm Littler Mendelson. The world’s largest management-side L&E firm had already transitioned to a cordial relationship with the Labor Department, after successfully suing to block a few Obama-era labor rules. Rogers’ arrival solidifies that status as the WHD further pivots to a carrot-over-stick enforcement mantra.

CO: The labor board also has its hands full on the regulatory front. The NLRB earlier this month proposed a trio of rules on the union election process, including a regulation that would limit the use of blocking charges to stall union elections and decertification votes.

The new regulations mean the board plans to dismantle in piecemeal fashion an Obama era rule that streamlined union elections. Shortly after Republicans gained control of the NLRB, the board asked the public to weigh in on whether that regulation should be chucked. It appears the board intends to chop up what opponents dubbed the “quickie” or “ambush” election rule in chunks.

Unions and worker advocates are likely to point out that while the time from petition to election has shrunk since the election rule was enacted in 2014, the win-loss rate at the labor ballot box has remained about the same. Unions continue to win about 70 percent of elections each year. Although new data compiled by Bloomberg Law show that number spiked at 77 percent in the first half of this year, it’s too early to say whether that’s a blip or a trend.

The question is: What’s next?

The board may eventually take another whack at the Obama election rule by setting a minimum and maximum time frame in which workers can vote on whether to organize after a union election petition is filed, former member Harry Johnson (R) recently told me.

“That would be an easy way to tell regional directors ‘look, no sooner than x or later than y, absent some sort of exigent circumstances,’” Johnson, who along with Miscimarra now represents businesses in labor-relations as a partner at Morgan Lewis, said.

Johnson did not specify where exactly the board should draw those lines. But he and Miscimarra called for a minimum waiting period of 30 to 35 days and a maximum of 60 days when both were members of the board, railing against the Obama rule in 2014.

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

See you back here next Monday.

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To contact the reporters on this story: 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: Terence Hyland at thyland@bloomberglaw.com

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