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Punching In: Transfer of DOL’s Oracle Lawyer Delayed Temporarily

Oct. 5, 2020, 10:04 AM

Monday morning musings for workplace watchers

Herold Gets More Time | Oracle Case Appeal? | NLRB’s Contract Bar Deadline

Ben Penn: Janet Herold, the Labor Department’s chief West Coast attorney who filed a whistleblower complaint against Labor Secretary Eugene Scalia, has been given an extra 30 days to decide whether to accept a job transfer or be fired, three sources briefed on the process said.

That’s well short of the 90-day reprieve the U.S. Office of Special Counsel had recommended. The independent federal agency asked DOL for the longer interval to give it more time to investigate Herold’s complaint that Scalia is unlawfully forcing her removal from the Office of the Solicitor as retaliation for accusing him of trying to intervene in the department’s pay-bias case against Oracle Corp.

New deadline: Herold, the regional solicitor for San Francisco and head of branch offices in Los Angeles and Seattle, now faces a late-November deadline to decide whether to take an involuntary reassignment to the Chicago office of DOL’s Occupational Safety and Health Administration, or leave the department.

DOL spokesman Bob Bozzuto declined to comment when asked why the department chose a shorter interval than what OSC had requested. OSC’s request for a 90-day delay, if granted, would have given Herold until late January to decide.

Shortening that window to late November prevents a potential new administration from reversing course on the move. Herold, while technically a career civil servant, was hired during the Obama administration and is a former associate general counsel at Service Employees International Union. Some inside the department see her as a supporter of the Obama administration’s approach to labor and employment issues, which the business community complained was overly punitive.

OSC, according to its policy, wouldn’t have asked DOL to give Herold an extension if its initial review of her whistleblower claim didn’t yield “reasonable grounds” to believe the department may have violated her rights.

But then again, OSC could only make a request to DOL leadership, so Scalia calls the shots here: The only federal agency that could order DOL to keep Herold in her job, the Merit Systems Protection Board, hasn’t had a quorum since President Donald Trump took office, and now has zero members.

Paige Smith: The DOL this week faces a turning point following its loss in the contentious and protracted litigation with Oracle, the case Herold filed in the Obama administration’s final days.

DOL must decide by Tuesday whether to appeal an administrative law judge’s ruling that was decidedly in the Silicon Valley giant’s favor. The judge held that the agency failed in its data-aided argument that the company systemically underpaid its female and minority workers.

An appeal would continue the DOL’s most prominent and controversial enforcement action under the Trump administration. It would mean the agency believes it can prevail despite a 280-page ruling that took the prosecution to task.

If it doesn’t appeal, the DOL would be surrendering at the first opportunity years of work to further litigation of the pay-discrimination claims.

A separate option, however, is for the agency to request an extension for more time, allowing it to thoroughly review the ruling before deciding to move forward with or abandon an appeal. Today’s the deadline to request an extension. There’s a push within the Office of the Solicitor for DOL to play for more time, two sources familiar with the matter said.

Ian Kullgren: Wednesday is the National Labor Relations Board’s deadline for interested parties to give feedback on whether it should adjust its doctrine for when union decertification elections can be held.

That doctrine, called the “contract bar,” prohibits union decertification elections while a collective bargaining agreement is in effect, for up to three years. It allows such votes only during a brief period near the end of the contract’s life. The NLRB first recognized the doctrine in 1939 and has modified it through the years.

The board said in June it would rethink the legal obstacle to union ousters as part of a high-profile case at a Delaware chicken-processing company, Mountaire Farms, which is mired in a dispute over a decertification election.

Workers at the Mountaire Farms processing plant alleged that management forced them during the pandemic to attend tightly packed, anti-union meetings related to the decertification election and garnished their wages to pay for personal protective equipment.

The board’s June 23 order asking the public to weigh in on the contract bar doctrine before any modifications didn’t indicate how the members would handle the issue. Previously, the board has made multiple decisions that make it easier to bounce existing unions in which it first announced an intent to review existing precedent.

Board records show that most of the parties who would normally weigh in on an issue like this have yet to do so, which means there could be a flood of comments leading up to the deadline.

John E. Higgins Jr., a Republican appointee to the NLRB under President Ronald Reagan, argued in an amicus brief that the board shouldn’t change the doctrine. “In my view a Board with less than a full complement of Members should not reconsider a matter of settled law absent a showing of extraordinary circumstances,” Higgins wrote. “In the case of contract bar, there is no such showing.”

The Koch-backed group Americans for Prosperity urged the board to rescind the doctrine entirely, arguing that it “deprives workers of fundamental rights guaranteed under the U.S. Constitution and can no longer be justified as a proportionate means to maintain stability in the workplace.”

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.

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

To contact the editors responsible for this story: John Lauinger at jlauinger@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com