United States: Pearce Withdraws (Beltway Buzz, February 8, 2019)

Last Updated: February 15 2019
Article by James J. Plunkett

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.


Pearce Withdraws. The Buzz has written extensively about the end of former National Labor Relations Board (NLRB) member Mark Gaston Pearce's term in August 2018, his subsequent renomination just days letter, and the expiration of that renomination upon the adjournment of the 115th Congress. Well, it seems as though this ongoing saga may have finally reached an endpoint, as Bloomberg BNA reported earlier this week that Pearce had withdrawn his name from consideration for another term on the Board. At this time, it is not known whether the White House will nominate another candidate, though many in the business community are hopeful that the seat will remain vacant (per tradition). Pearce was instrumental in the development of most of the Board's high-profile policy changes in recent years, such as the Specialty Healthcare and Browning-Ferris Industries decisions, as well as the changes to the Board's union election procedures.

School Board. Speaking of the NLRB, this week the Board announced that it is soliciting briefs on "whether the Board should exercise its discretion to decline jurisdiction over charter schools" and overrule (or modify) two 2016 Board decisions that held that the Board has jurisdiction over such schools. While this case is obviously limited to a particular industry, it perhaps speaks to a larger effort of the current Board to pull back on what some Board-watchers had felt was an overextension in recent years of the Board's jurisdiction over certain industries (such as charter schools) and workers (such as graduate students and supervisors). Briefs must be submitted by March 6, 2019.

Railway Labor Act Decertification Changes Proposed. On January 31, 2019, the National Mediation Board (NMB) proposed changes to its procedures for decertifying bargaining representatives. While decertification of bargaining representatives is permitted under the Railway Labor Act, current regulations require employees to first nominate a "straw man" representative and then vote for "no union" in the resulting election. NMB's proposal eliminates this indirect "straw man" requirement "to simplify the decertification process and put decertification on an equal footing with certification." Comments are due on April 1, 2019.

EEOC and the Government Shutdown. Unlike the U.S. Department of Labor, NLRB, and NMB, the Equal Employment Opportunity Commission (EEOC) was essentially shut down during the recent 35-day partial lapse in appropriations. To assist stakeholders, the EEOC has established a very helpful "What You Should Know" page relating to fallout from the shutdown. The page addresses matters such as Freedom of Information Act requests, due dates for filing of position statements, and the extension of the EEO-1 submission deadline (spoiler alert: it is now May 31, 2019).

Minimum Wage Hearing. On February 7, 2019, the U.S. House Committee on Education and Labor held a hearing entitled "Gradually Raising the Minimum Wage to $15: Good for Workers, Good for Businesses, and Good for the Economy." A total of 10 witnesses—including workers, professors, economists, business owners, and elected officials—appeared. Legislation raising the minimum wage could eventually pass the House of Representatives, but it will likely have a more difficult time in the Senate. However, the House's treatment of this issue could also provide political momentum to raise the minimum wage at the state and local levels.

Political Heroes. Actor Chris Evans—perhaps best known for his portrayal of Captain America in the Avengers series—was seen this week chumming around with various elected officials in Washington, D.C. Interestingly, Evans is not the first Avenger to rub elbows with members of Congress; actors Mark Ruffalo (The Incredible Hulk), Don Cheadle (War Machine), and Bradley Cooper (Rocket Raccoon) have all spent time on Capitol Hill. It is unclear exactly what Evans was doing in D.C., but the Buzz presumes that he was lobbying for the rescission of the Sokovia Accords.

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