United States: NLRB General Counsel Memo. (Beltway Buzz - December 8, 2017)

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


Another hectic week here in D.C. has us feeling like we're living in a glass case of emotion. Here's why:

NLRB General Counsel Memo. On Friday, December 1, National Labor Relations Board (NLRB) General Counsel (GC) Peter B. Robb issued his expected "mandatory submissions" memo. No, the memo isn't a catalogue of MMA choke holds but instead is a traditional tool of both new and sitting GCs at the Board. The mandatory submissions memo provides the regulated community with an initial glimpse into Robb's policy priorities. More specifically, the memo sets forth the categories of cases that should be sent from the NLRB regions to the Board's Division of Advice in Washington, D.C., to await further instructions. Eric C. Stuart and Christopher R. Coxson have a must-read post on this matter.

Tip-Pooling Regulation. On December 5, the Department of Labor's Wage and Hour Division proposed to ease the previous administration's regulations prohibiting service industry employers that don't take a tip credit from participating in tip-pooling arrangements in which servers share tips with back-of-the-house staff. The 2011 prohibition on such arrangements is the subject of an ongoing lawsuit filed by the National Restaurant Association, which praised the new proposal. Stakeholders have 30 days in which to file comments. Alfred B. Robinson, Jr. and Brooke S. Purcell have the details here.

Where is the Regulatory Agenda? Well, Thanksgiving has come and gone, and we haven't seen a fall version of the Regulatory Agenda—the comprehensive document that serves as the federal government's forecast and timeline of regulatory activity. From 2013 through 2016, the agenda appeared right before Thanksgiving (one year, it was published on the Wednesday prior). Not so this year, and the business community remains anxious for some clarity on when—or if—the administration might issue regulatory proposals dealing with matters such as the overtime rule, injury and illness reporting, and the H-4 visa rule, among others. Suffice it to say that the Buzz will be on the lookout for the appearance of the agenda and will report back with any news.

Blacklisting Scrapped . . . Again. The Buzz previously reported on an effort to include a "mini-blacklisting" regime for Department of Defense contractors in the FY2018 National Defense Authorization Act (NDAA). Last week, Senate and House conferees came to an agreement on the FY2018 NDAA legislation and sent the bill to the White House for the president's signature. Thankfully, the blacklisting language was stripped from this final bill.

Paid Leave Hearing. On Wednesday, the House Committee on Education and the Workforce's Subcommittee on Health, Employment, Labor, and Pensions held a hearing on workplace leave policies. Corporate witnesses for both the U.S. Chamber of Commerce and the Society for Human Resource Management detailed the difficulties of complying with the patchwork of state and local leave laws and endorsed the Workflex in the 21st Century Act (H.R. 4219).

OSHA Nominee Hearing. On December 5, the Senate Health, Education, Labor and Pensions (HELP) Committee held a confirmation hearing on the nomination of Scott Mugno to be assistant secretary for Occupational Safety and Health Administration (OSHA). Mugno is currently vice president of safety, sustainability, and vehicle maintenance at FedEx Ground. Next stop for Mugno would be a vote by the committee. Assuming Mugno makes it through the committee, he will then join a glut of nominees—such as Wage and Hour Administrator nominee Cheryl Stanton and Equal Employment Opportunity Commission (EEOC) chair nominee Janet Dhillon—who are awaiting Senate approval.

DHS Secretary Confirmed. On December 5, the U.S. Senate confirmed the nomination of Kirstjen Nielsen to be Homeland Security secretary. The Buzz will be watching to see what impact—if any—Nielsen will have on the regulatory agenda at United States Citizenship and Immigration Services (USCIS).

Worker Center Update. This week, the U.S. Chamber of Commerce's Workforce Freedom Initiative issued a new report that attempts to demonstrate that "worker centers are an increasingly important and well-funded element of organized labor's strategy to advance its agenda, with tens of millions of dollars funneled to them by both unions and foundations."

Repeal Day. The First Amendment to the Constitution took center stage in D.C. this week, as the Supreme Court heard oral argument in the Masterpiece Cakeshop case. However, this week also marked the anniversary of another significant amendment to the Constitution. On December 5, 1933, Utah ratified the 21st Amendment, repealing Prohibition, which had been in place for almost 15 years. The day has since become known as Repeal Day. So in celebration of Repeal Day this week, and as a public service, the Buzz has included below a recipe for one of our own cocktails. Please enjoy.

The Perfectly Clear Successor

.75 oz. rosemary simple syrup*

1.5 oz. gin or vodka (but really gin)

3 oz. grapefruit juice

Shake with ice. Strain into an ice-filled Collins glass. Top with soda water. Garnish with a rosemary sprig.

*Combine 1/2 cup water with 1/2 cup sugar and bring to a low boil. Place 3 or 4 sprigs of rosemary in the water and remove from heat. Let steep 10 minutes. Discard rosemary sprigs.

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