NLRB GC Pushes for Card Checks and Limits Employer Speech (Beltway Buzz, April 22, 2022) – Employee Rights/Labour Relations

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The Beltway Buzz is a weekly update summarizing labor and employment news inside the Beltway and clarifying how what’s happening in Washington, DC could impact your business.

Last week, National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo filed a brief in a case asking the Board to make sweeping changes to federal labor laws. The biggest potential changes relate to the following issues:

  • Employer speech. As the buzz discussed recently, the General Counsel issued a memorandum to Regional Directors on employee attendance at mandatory workplace meetings. In last week’s brief, the General Counsel formally asked the Board to rule that mandatory employer meetings that discuss the pros and cons of unionization with employees are illegal because they “intrinsically involve a threat of retaliation to employees for exercising the protected right to refrain from listening to such speech.”

  • Map control. The Advocate General also called on the Council to reinstate a doctrine – abandoned more than 50 years ago – which would allow a union to organize by card check, unless the employer can demonstrate its “doubt of good faith” as to the union’s majority status. In determining whether the employer acted in good faith, the General Counsel urged the Commission to “consider all relevant circumstances, including any unlawful conduct by the employer, the sequence of events and the elapsed time between the refusal [to recognize and
    bargain with the union] and illegal conduct.” According to the brief, an employer’s lack of good faith “would include situations in which the employer’s reason for refusing to negotiate is to buy time in order to persuade employees to change their minds. , even using what would otherwise be legitimate persuasion. »

Although the Commission has not yet ruled on this case, the Advocate General’s brief sets the stage for changes that could change the landscape of labor policy. the buzz will follow this case closely, in particular if the Commission seeks comments from stakeholders before deciding.

Raze Arizona. On April 21, 2022, the Occupational Safety and Health Administration (OSHA) posted a proposal to revoke its final approval – issued in 1985 – of Arizona’s Occupational Safety and Health Plan. According to OSHA, this proposal is “in response to nearly a decade of failure to adopt and enforce standards and enforcement policies at least as effective as those used by the Occupational Safety and Health Administration of the department”. OSHA alleges that Arizona’s requirements for fall protection in residential construction fall short, that the state has not “enacted penalty levels that are at least as effective as [f]ederal OSHA” and that it has not adopted requirements at least as effective as OSHA’s Temporary Emergency COVID-19 Standard (ETS) for the healthcare industry. (Of course, this standard expired end of 2021.) Comments are due by May 26, 2022.

OSHA COVID-19 Health Care Standard. Speaking of the COVID-19 healthcare ETS, today, April 22, 2022, is the deadline for the public to submit comments in response to OSHA’s partial reopening of its comment file for the COVID-19 healthcare ETS which was published on June 21, 2021 OSHA now intends to make the healthcare ETS, which expired on December 21, 2021, a permanent standard. In his reopening noticeOSHA sought public comment on “potential regulatory outcomes that would deviate from the provisions of the ETS,” but the agency did not provide any specific proposed regulatory text.

EEO-1 reports are due, but are there any changes coming? the 2021 EEO-1 Component 1 data collection is currently open. Employers with 100 or more employees and federal contractors with 50 or more employees have until May 17, 2022 to file their reports with the US Equal Employment Opportunity Commission (EEOC). Although the current EEO-1 form does not expire until June 2023, the EEOC is already considering changes to the form. In his Equity Action Plan (dated January 2022 but published April 15, 2022), the EEOC notes that it will focus on assessing “whether additional demographic categories should be included in the workforce data collections of the EEOC”. The plan also specifies the following:

In 2020, the EEOC completed its first historical collection of salary data from private sector employers. The National Academies of Sciences is currently reviewing data from this collection, which will inform the agency’s future collection of salary data. The agency will develop short, medium and long-term goals with respect to salary data after receiving the panel’s report.

Clearly, reviewing the collection of wage and hour data from employers is still on the EEOC’s radar.

An intoxicating idea. This week in 1938, Rep. Gomer Griffith Smith (D-OK) introduced HJ Res. 661, which proposed the following amendment to the U.S. Constitution:

“SECTION 1. Drunkenness in the United States and all territories thereof is hereby prohibited.

“Sec. 2. Congress and the several States shall have concurrent power to enforce the provisions of this Act and shall fix the penalties for violation thereof.”

Perhaps to remind Smith that prohibition ended in 1933, someone scribbled anonymously the following additional language:

Section 3. This period of time, commonly referred to as Saturday night, is hereby struck from the calendars of the United States and abolished.”

Section 4. Congress and the several States shall have concurrent power to change human nature from time to time at its discretion. »

Unsurprisingly, the bill failed to make it out of the House Committee on the Judiciary.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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