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Union Bailout Update

The 5th Circuit court has granted the DOL’s request for an expedited review of the DOL’s appeal of the nationwide injunction against the overtime rule. The injunction was ordered by a District judge in Sherman, Texas in late November, as the rule was due to take effect on Dec. 1. Briefs are due by the end of January, and oral arguments will be scheduled after that date.

Judge Cabranes

Judge Cabranes

The Second Circuit Court of Appeals has upheld the Speciality Healthcare micro-units decision, and provided an additional framework for application. Judge Jose Cabranes, writing for the court, explained the two parts as (a) identifying shared interests among members of the petitioned-for unit, and (b) explaining why excluded employees have meaningfully distinct interests…that outweigh similarities with unit members. To quote Cabranes,

Merely recording similarities or differences between employees is not enough. Explaining why the excluded employees have distinct interests in the context of collective bargaining is necessary to avoid arbitrary lines of demarcation and to avoid making step one of the Specialty Healthcare framework a mere rubber stamp.

The new OSHA “anti-retaliation” provisions took effect Dec. 1st, as a Texas district court denied a preliminary injunction. Although a permanent injunction is possible, the new regulation is now law until the granting of such an injunction or any possible action by the incoming administration.

As we enter the season of the changing of the guard in the White House, the Obama administration’s legacy of regulatory action with respect to labor and employment law is under scrutiny. In a report by the Coalition for a Democratic Workplace and Workplace Policy Institute, over the last 8 years the National Labor Relations Board has overturned 91 precedents, wiping out more than 4,000 years of case law—averaging more than 45 years per decision, and the agency’s new election rules overturned a combined 454 years of protocol.  According to the 73-page study,

In each case where the Obama Board changed the law, the resulting new law became more favorable to labor interests than it did under previous Board rulings—frequently at the expense of promoting stable bargaining and economic growth and without regard for balancing the interests of business, labor and employees under the Act.

As almost all of the actions taken by the Obama NLRB were reversals of longstanding law, and completely partisan (of the 91 cases overturned, not a single Republican board member voted in support), those in favor of supporting employer and employee interests over Big Labor are hopeful that the Trump administration will undo a significant portion of the damage caused by the current board.

Andrew Puzder

Andrew Puzder

Some members of Congress are poised to take action regardless of how quickly a Trump-constituted NLRB may act. Representative Bradley Byrne (R-AL) is touting bipartisan support for legislation designed to “restore the sensible joint employer definition that was in place for more than 30 years.” Representative Byrne is a member of the Education and Workforce Committee. With the appointment of Andrew Puzder as Labor Secretary, a fast-food franchise CEO who has been a vocal critic of the Obama administration’s regulatory agenda, such actions are likely to gain traction.

Another move being suggested for the new administration is the revival of an Office of Labor-Management Standards division created under Bush to audit large international unions. The Obama administration disbanded the division, and the OLMS has been operating with 44 percent fewer full-time employees than during the Bush administration. As LRI’s president Phil Wilson was quoted in a Bloomberg article on the subject, such a shift “doesn’t require rulemaking, that doesn’t require legislation; that’s just enforcing more vigorously the law that’s already on the books.” In fact, no new money need be allocated, as money could be redirected from the Wage and Hour division or from OSHA, as happened under Bush.

The Competitive Enterprise Institute also jumped into the policy conversation with a new report detailing policies it hopes the new administration will tackle. Styling current labor law as an outdated remnant of the New Deal era, the report calls for reform, including passing the Employee Rights Act.

Now that Big Labor has lost a White House advocate for union-friendly laws and regulations, the one bright spot potentially remaining on the union radar screen is trade, where Trump appears to line up more to labor’s liking. However, since all trade deals must pass the approval of Congress, this isn’t yet a windfall on the side of Big Labor.

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