The House Committee on Education and the Workforce approved three bills—the Tribal Labor Sovereignty Act, the Workforce Democracy and Fairness Act, and the Employee Privacy Protection Act—which would prohibit the NLRB’s jurisdiction in Indian territories, undo a prior NLRB decision permitting workers to organize in “micro units,” limit employers’ requirement to provide employee information during election drives, give employers more time before union elections are held, and allow employers to raise more concerns during the pre-election hearing. Bipartisan support for the bills will likely be required in order for them to pass in the Senate.
The U.S. Department of Labor (DOL) issued a proposed regulation to rescind the Obama era “persuader” rule. The rule, which would have expanded employers’ disclosure requirements regarding third-party advisors hired to fight unionization, has never been enforced due to an early federal court injunction blocking it from taking effect. The rule is open to public comment for 60 days. In connection with its administrative action, the DOL has asked the U.S. Court of Appeals for the Fifth Circuit to hold litigation in “abeyance” in a case involving the “persuader” rule. If the abeyance is granted, the DOL—which sent the White House a draft proposal to rescind the rule in May—would not be required to take an action on the appeal for six months, or 30 days after the DOL issues a final rule rescinding the persuader rule, whichever comes sooner.
The U.S. Justice Department switched its position and is now opposing the NLRB’s position that enforcement of arbitration agreements that restrict employees from participating in class and collective actions violates employees’ right to engage in “concerted” activity. Siding with employers, the government filed a new amicus brief in Murphy Oil USA, Inc. v. NLRB, Epic Systems Corp. v. Lewis, and Ernst & Young LLP v. Morris, private cases dealing with this arbitration issue. The Supreme Court agreed to hear the cases in January, and will determine the validity of class action waivers—an issue that has divided lower courts.
Nathan Mehrens is slated to be named to head the Office of Labor-Management Standards (OLMS), the Labor Department agency that enforces union disclosure requirements. Mr. Mehrens previously served as a political attorney under the George W. Bush administration, during which the OLMS received increased funding to audit international unions for alleged corruption—a practice that ceased during the Obama administration. In its budget request for 2018, the Trump administration has proposed a 22 percent hike in OLMS funding, nearly $2 million of which would be dedicated to increase auditing of large international unions.
President Trump announced his nominations of Kyle Fortson and Gerald W. Fauth to the National Mediation Board (NMB). Fortson is the Labor Policy Director at the Senate Health, Education, Labor and Pensions Committee. Fauth formerly served as a staff member at the Surface Transportation Board, and has nearly 40 years of experience working in the railroad and transportation industry.
President Trump announced two nominations to the NLRB. The first, William J. Emanuel is currently an attorney at Littler Mendelson. The second, Marvin E. Kaplan, works on the Occupational Safety and Health Review Commission and previously served as Republican counsel to the House Education and Workforce Committee which, among other things, provides oversight of the NLRB. If confirmed, Emanuel and Kaplan will give Republicans a 3-2 majority on the Board.