Beltway Buzz, June 14, 2024

SCOTUS to NLRB: No Special Order Standard for You. Yesterday, the United States Supreme Court issued a ruling in a case that challenged the relaxed standard of injunction used by the National Labor Relations Board (NLRB) to take legal action under Section 10(j) of the National Labor Relations Act. Labor Relations in cases of unfair labor practice. While many courts have traditionally adhered to a four-factor test when assessing injunctive relief (ie, the plaintiff is likely to succeed on the merits, is likely to suffer irreparable harm in the absence of injunctive relief, the balance of the equities goes in the plaintiff’s favor . and the order is in the public interest), in this case the district court and the Sixth Circuit Court of Appeals upheld the NLRB’s two-factor test, which is (1) there is reasonable cause to believe that unfair labor practices occurred and (2) injunctive relief is just and proper. Ruling against the Board and its modified standard, the Court wrote: “Nothing in the text of §10(j) overrides the presumption that the four traditional criteria govern a preliminary injunction request by the Board.” In practice, the decision will make it more difficult for the Board to obtain injunctions in federal court. Check out Zachary V. Zagger’s timely article for all the details.

NLRB Inspector General: Mail Ballot Procedures Inconsistent. On June 6, 2024, the NLRB’s Office of Inspector General (OIG) issued a report assessing “[NLRB] Compliance of Regional Offices with the Agency’s postal election procedures.” While vote-by-mail elections have long been allowed, they skyrocketed during the COVID-19 pandemic, and the processes and operations of conducting such elections have since come under scrutiny. Auditing a random sample of vote-by-mail elections conducted in 2022, the OIG “found that Regional Offices were not in compliance with the Agency’s vote-by-mail election procedures” and that many of the non-compliances were “caused by a lack of an appropriate design and implementation, and monitor the internal control environment.” The report concludes with a recommendation that the Board’s “Operations-Management Division” establish a system of exclusive internal controls for the mail-in voting process.The report’s findings support the argument that in-person voting should be the preferred method of determining whether employees want to be represented by a trade union.

The House hearing raises questions about McFerran’s renaming. On June 12, 2024, the House Subcommittee on Health, Employment, Labor, and Pensions held a hearing entitled, “The NLRB’s Override: Violating Workers’ Rights and Inciting Injustice.” Focusing on controversial NLRB decisions (eg, decisions that second-guess workplace policies, upholding potentially harassing behavior under the rubric of protected concerted activity, and green-lighting some form of unionization through card checking) and missteps, Republicans in the session backed down. on President Joe Biden’s efforts to reconfirm NLRB Chairman Lauren McFerran for another term. In his opening statement, Subcommittee Chairman Bob Good (R-VA) said that under McFerran’s leadership, “the NLRB has become the arm of action for Big Labor.” Expect more Republican scrutiny of McFerran’s nomination in the coming weeks.

The heat is (almost) on! This week, the Occupational Safety and Health Administration (OSHA) sent its proposed indoor and outdoor heat standard to the Office of Information and Regulatory Affairs (OIRA) for review. OIRA’s review represents a formal start to the rulemaking process, and once OIRA approves the proposal, OSHA will make it available for public comment shortly thereafter. While the proposal under review is not yet publicly available, OSHA previously released a “framework” document that provides an overview of what might be included in an eventual proposal. Given the time involved in OIRA’s review, the public comment period, and OSHA’s review of those comments, any final heating standards won’t appear until a second Biden term. Read Melissa A. Bailey’s recent article for all the details.

The bill would ban arbitration, class action waivers. This week, Senator Patty Murray (D-WA) and Representatives Bobby Scott (D-VA) and Jerrold Nadler (D-NY) reintroduced the Fairness for Workers Restoration Act (S. 4502 / HR 8691). The bill would ban pre-dispute agreements to arbitrate workplace claims, overturning a 2018 Supreme Court ruling in Epic Systems prohibiting collective action waivers and imposing certain notice and waiting period requirements for post-dispute arbitration agreements. The bill is another attempt to ban or limit arbitration of workplace disputes. At this time, however, the bill does not appear to enjoy the bipartisan popularity of the Older Americans Protection Act of 2023 (S. 1979).

In love anniversary. This week in 1967, the Supreme Court issued its unanimous decision Love v. Virginia, holding that laws prohibiting interracial marriage were unconstitutional. In 1959, Richard Loving, a white man, and his wife, Mildred, a black American woman, were sentenced to prison under the Virginia Racial Integrity Act of 1924 after they married in Washington, D.C. The Lovings appealed their case all the way to the Supreme Court. In striking down Virginia’s law and rendering other similar state laws unenforceable, Chief Justice Earl Warren wrote for the unanimous court: “We have consistently denied the constitutionality of measures that limit the rights of citizens because of race. There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the equal protection clause. A seminal case in civil rights history, the decision in In love laid the foundations for the Court’s decisions in United States v. Windsor570 US 744 (2013) (striking down the provision of the Defense of Marriage Act that barred federal recognition of same-sex marriages), and Obergefell v. Hodges (2015) (right to marry is a fundamental right that must be guaranteed to same-sex couples).