Thursday, July 21, 2022
NLRB Reaffirms Regional Directors’ Discretion to Dismiss Election Petitions Absent a Hearing On June 15, 2022, in Rieth-Riley Construction Co., Inc., 371 NLRB No. 109, the National Labor Relations Board reaffirmed that regional directors have the authority to dismiss representation and decertification petitions if the regional director determines there is merit to an unfair labor practice charge involving misconduct “that would irrevocably taint the petition and any related election.” This 3-2 decision illustrates a sharp division among Board members regarding the regional director’s discretion to administratively dismiss a timely filed decertification petition without first holding an evidentiary hearing on the impact of pending but unproven unfair labor practice allegations. More
November election news: In a sign that California could play a pivotal role in determining which party secures control of the U.S. House of Representatives in November, five of the six candidates added Monday to the Democratic Congressional Campaign Committee’s “Red to Blue” program are running in California. The candidates include Kermit Jones (running against Kevin Kiley in CA-03), Adam Gray (running against John Duarte in CA-13), Christy Smith (running for a third time against Mike Garcia CA-27), Asif Mahmood (running against Young Kim in CA-40), and Will Rollins (running against Ken Calvert in CA-41). They’ll receive fundraising, organizing, and other support from the committee as it seeks to flip GOP-held seats. Californians now account for more than one-fifth of the 33 candidates in the Red to Blue program, according to the Los Angeles Times. Two other candidates, Jay Chen, (running against Michelle Steel in CA-45) and Rudy Salas (running against David Valadao in CA-22), were already on the list. A similar program run by the National Republican Congressional Committee called “Young Guns” supports five California House candidates.
Fresno Council President Charged with Felony Over Alleged Extortion In allegations made by fellow city councilman Garry Bredefeld — and corroborated publicly by City Attorney Sloan – Fresno City Council President Nelson Esparza allegedly told Sloan to work only for a majority of four councilmembers or face termination.
Fresno Supervisors Move $7B Measure C Renewal One Step Closer to Ballot A projected $7 billion transportation tax that could shape road building, mass transit, and maintenance for a generation is one step closer to the ballot. The Fresno County Board of Supervisors voted 4-1 on July 12 to advance a spending plan on the renewal of Measure C, the half-cent transportation sales tax on the books since 1986. The current version expires in 2027. Measure C leaders have been pushing for a November 2022 renewal to take advantage of project costs they say will only go up. Boosters also want to avoid a 2024 presidential ballot they predict will be “divisive.” Story
San Francisco Ranked the World's Most Expensive City for Construction The city overtakes Tokyo as inflation and supply chain snarls affect global markets. A new report by Turner & Townsend quantifies what contractors who work in San Francisco already know: Doing business there is expensive. The report, published this week, found that construction in San Francisco costs $4,728.50 per square meter ($439.29 per square foot) due to a perfect storm of inflation, supply chain issues, and demand from tech companies such as Google, Apple, and more. Last year’s top city, Tokyo, fell to the No. 2 spot on the list, followed by Osaka, Japan, which was included on the list for the first time.
In total, North America had four markets in the top 10. Aside from San Francisco, New York City ranked fourth, Boston ranked eighth, and Los Angeles ranked ninth, per the report. According to a press release, significant shifts in North American markets were driven primarily by the strengthening of the U.S. dollar, higher building material costs caused by supply chain disruptions, and high labor costs. A worldwide skilled labor shortage has bottlenecked development and forced contractors into delays and project disruptions. In this year’s survey, 79.6% of markets were experiencing skills shortages, and 15.9% were in balance. According to the release, only 4.5% of markets had a surplus in construction labor. The report comes as the U.S. construction industry battles wage and employment issues, with wages expected to beat projections even as hiring is slowing. More
Unions kill Amazon Hub in Newark, and Thousands of Jobs Love them or hate them, Amazon invests and creates jobs, but that didn’t stop a coalition of unions from helping to kill a planned airport cargo center in New Jersey, for which Amazon intended to hire 1,000 workers, and invest hundreds of millions of dollars over 20 years. The project, which hinged on a 20-year lease worth hundreds of millions of dollars, attracted opposition after the Port Authority disclosed it last summer. Story
Senate Retirement Tracker: Currently, six members (five Republicans and one Democrat) of the Senate have announced that they will not seek re-election in 2022. The Republicans are Pat Toomey (R-PA), Richard Burr (R-NC), Rob Portman (R-OH), Richard Shelby (R-AL), and Roy Blunt (R-MO). The Democratic member is Pat Leahy (D-VT). There will also be a special election to finish the term of Sen. Jim Inhofe (R-OK). That special election will coincide with the regular Senate election in Oklahoma, similar to the Georgia Senate elections from the 2020 cycle.
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House Retirement Tracker: Currently, 51 House members (19 Republicans and 32 Democrats) have announced that they will not seek re-election to the House in 2022. The Republicans are Tom Reed (R-NY-23), Mo Brooks (R-AL-05), Jody Hice (R-GA-10), Kevin Brady (R-TX-08), Lee Zeldin (R-NY-01), Ted Budd (R-NC-13), Vicky Hartzler (R-MO-04), Billy Long (R-MO-07), Adam Kinzinger (R-IL-16), Anthony Gonzalez (R-OH-16), Louie Gohmert (R-TX-01), John Katko (R-NY-24), Trey Hollingsworth (R-IN-09), Markwayne Mullin (R-OK-02), Fred Keller (R-PA-12), Van Taylor (R-TX-03), Fred Upton (R-MI-04), Bob Gibbs (R-OH-07), and Chris Jacobs (R-NY-23). The Democratic members not running for re-election to the House are Ann Kirkpatrick (D-AZ-02), Val Demings (D-FL-10), Charlie Crist (D-FL-13), Cheri Bustos (D-IL-17), Tim Ryan (D-OH-13), Conor Lamb (D-PA-17), Ron Kind (D-WI-03), Filemon Vela (D-TX-34), Karen Bass (D-CA-37), John Yarmuth (D-KY-03), David Price (D-NC-04), Anthony Brown (D-MD-04), Mike Boyle (D-PA-18), GK Butterfield (D-NC-01), Jackie Speier (D-CA-14), Tom Souzzi (D-NY-03), Eddie Bernice Johnson (D-TX-30), Peter DeFazio (D-OR-04), Peter Welch (D-VT-AL), Alan Lowenthal (D-CA-47), Stephanie Murphy (D-FL-07), Bobbie Rush (D-IL-01), Brenda Lawrence (D-MI-14), Albio Sires (D-NJ-08), Lucille Roybal-Allard (D-CA-40), Jerry McNerney (D-CA-09), Jim Langevin (D-RI-02), Earl Perlmutter (D-CO-07), Jim Cooper (D-TN-05), Kathleen Rice (D-NY-04), Ted Deutch (D-FL-22), and Kai Kahele (D-HI-02).
California Employers Soon May Be Subject to a Workplace Violence Safety Standard On May 17, 2022, Cal/OSHA released a draft regulation for workplace violence prevention that applies to all California employers, with only limited exceptions. Cal/OSHA is seeking input from interested parties by July 18, 2022. Currently, Cal/OSHA’s workplace violence regulations only apply to employers in the health care industry. For non-health-care industries, Cal/OSHA regulates workplace violence using the employer’s obligation to regularly identify and evaluate workplace hazards under Section 3203 of Cal/OSHA’s Injury and Illness Prevention Standard. More
If Employers Test Union Certification and Lose, Will They Have to Pay? On June 24, 2022, the NLRB sought an order forcing an employer who refused to negotiate with a certified union to pay back wages and benefits to employees that they allegedly could have earned absent the delay in bargaining during the time the employer appealed the NLRB’s certification of the union as the exclusive bargaining representative in federal court. Story
Halfway through the primary calendar, the number of state legislative incumbents defeated in primaries is up 65% State legislative incumbents are losing to primary challengers at an increased rate this year compared to 2020. Across the 26 states that have held primaries, 132 incumbents — 27 Democrats and 105 Republicans — have lost. This represents a 65% increase from 2020 among these states at the same juncture in 2020. This increase has been driven by Republican losses, up 98% from 53 in 2020. For Democrats, the number defeated this year remains the same.
Here are five facts about state legislative incumbent primary losses:
· In total, 5.0% of incumbents running for re-election this year have lost, up from defeat rates ranging from 2.4% to 3.4% since 2014.
· Of the 26 states that have held primaries, 22 have had at least one state legislative incumbent lose in a primary.
· The defeat rate is highest in Idaho, where 18 incumbents— all Republicans — lost to challengers. That represents 24% of all incumbents who filed for re-election.
· Twenty-nine of the 132 incumbents defeated (22%) were guaranteed to lose because of redistricting (when states redraw legislative lines, incumbents can often end up in a new district with other incumbents leading to incumbent v. incumbent primaries or general elections). Twenty-three Republican incumbents lost in incumbent v. incumbent primaries, while six Democrats lost in incumbent v. incumbent primaries.
Arizona Business Groups Announce Opposition to Labor Union-Backed Debt Collection Initiative Two of the state’s leading business groups have announced their opposition to an initiative that would decimate Arizonans’ ability to secure credit and financing. The Arizona Chamber of Commerce & Industry and the Greater Phoenix Chamber said they oppose what proponents have dubbed the “Predatory Debt Collection Protection Act.” Story
Hello From a New Citizens Initiative Voice of San Diego reported that former San Diego Mayor Kevin Faulconer “is not just playing pundit on KUSI these days. He’s also making calls to gauge support for a new citizen initiative he wants to get on the ballot in November 2024. We are not entirely sure what the measure will be. Still, it would likely fall along the lines of one that voters in Sacramento will consider, which would make it illegal for unsheltered residents to camp on the street once there are enough city shelters and safe camping options.
UI Tax increases We mentioned last time that California mainly ignored the debt it incurred to pay the enhanced UI benefits during COVID. It turns out California is not alone. Connecticut, Illinois, and New York — all Democratic-led states with budget surpluses — have decided “not to fully repay the federal government for money borrowed to fund unemployment benefits,” according to the Wall Street Journal, “a move that will impose increased charges on businesses to help make up the difference.” What happens next: “If the debts aren’t fully repaid by Nov. 10, as officials in the four states envision, the federal government will start charging $21 per employee annually on all businesses in the states next year. In addition, state taxes on businesses to fund their unemployment programs will increase by varying amounts.” Story
Sinema’s vote critical as Senate Democrats attempt to pass slimmer Build Back Better The Biden White House and Senate Majority Leader Charles Schumer are negotiating with West Virginia Democrat Sen. Joe Manchin to pass a slimmed-down version of the failed Build Back Better bill, a sweeping multi-trillion-dollar domestic policy and spending package that collapsed last December. Ariz. Sen. Kyrsten Sinema will determine whether a revised bill gains traction. Story
Calling Mulder and Scully The House voted last week to create a secure government system to report UFOs and to compel current and former officials to reveal what they might know about the mysterious phenomena by promising to protect them from reprisal. It was a bipartisan amendment to the National Defense Authorization Act and passed without debate. I’ll post the link if you have something to report.
‘A very dangerous situation’ The most advanced category of mass-produced semiconductors — used in smartphones, military technology, and much more — is known as 5 nm. A single company in Taiwan, known as TSMC, makes about 90 percent of them. U.S. factories make none. The situation can potentially cause a national security crisis: If China were to invade Taiwan and cut off exports of semiconductors, the American military would be at risk of being overmatched by its main rival for global supremacy. One vocal opponent of the bill is the Chinese government. Its state media has criticized the idea as “bullying” and part of a “Cold War mentality.” No country’s share of semiconductor manufacturing has recently increased as rapidly as China’s. Story
Lawmakers Jet Around the World What exactly do state lawmakers do when they aren’t in Sacramento? A common activity is embarking on trips funded not by taxpayers but by special interests that lobby the Legislature — typically a combination of labor unions, corporations, and trade associations. For example, after finishing the legislative session last year, groups of lawmakers jetted off to Portugal and Maui on trips sponsored by various interest groups. Another delegation of lawmakers went to Iceland this spring. Story
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Top Five Labor Law Developments for June 2022
· The National Labor Relations Board modified its electronic notice posting requirements for workplaces impacted by COVID-19.
· The NLRB issued its spring rulemaking agenda, which focuses on the joint-employer status and its Election Protection Rule.
· The NLRB’s General Counsel (GC) issued a memorandum updating the make-whole remedies that regional offices can seek in settlement agreements, including the cost of baby formula.
· The NLRB’s Buffalo regional office filed a petition in district court for a nationwide cease and desist order against Starbucks.
· Workers at a Chipotle Mexican Grill in Augusta, Maine, filed an NLRB election petition, trying to become the first unionized location for the restaurant chain.
Madame Ambassador: Republican business executive and former gubernatorial candidate Meg Whitman will be the Biden administration’s ambassador to Kenya after winning Senate approval. It’s a full-circle moment for Whitman, who lost an expensive contest — much of it her own money — to Democrat Jerry Brown back in 2010. Fast-forward to 2020: Brown had left office as the state’s longest-serving governor, and Whitman had aligned with Democrats by endorsing Joe Biden at the Democratic National Convention. That support helped Whitman secure a nomination. She has ironically fared better than Los Angeles Mayor Democrat Eric Garcetti, a top Biden campaign surrogate. Garcetti's India ambassadorship nomination has stalled allegations that the mayor knew of a former prominent aide’s alleged sexual misconduct. Garcetti's parents hired a top lobbying firm to help him secure the nomination. The firm, McGuireWoods Consulting, registered to lobby on behalf of Sukey and Gil Garcetti for “Outreach Related to Confirmation for Ambassadorship Nomination.” [Politico]
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