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Government Affairs and Merit Shop Advocacy

Thursday, August 31, 2023

National Labor Relations Board Reverts to Shortened 2014 Representation Election Timeframe On August 24, 2023, the National Labor Relations Board (the “Board”) issued a final rule (the “2023 final rule”) amending the federal regulations that govern representation election procedures. The 2023 final rule is the latest in a history of back and forth changes reducing or prolonging the timeframe from a petition for union representation to an election, and from an election to certification of the election results (hereinafter the “representation election process”). Effective December 26, 2023, the 2023 final rule will drastically shorten the representation election process by returning to the standard the Board adopted in 2014. The changes, include:

  • Pre-election hearings will be scheduled sooner and take place sooner;
  • Statements of Position will be due sooner, and Responsive Statements of Position will normally be oral;
  • Regional directors will have limited ability to extend the deadline for filing Statements of Position; and
  • Post-hearing briefing will be allowed only where the regional director or hearing officer determines they are necessary and not as a matter of right.
OSHA Wants to Revise its Worker Walkaround Representative Policy –Employers Should Be Concerned On August 29, 2023, the U.S. Occupational Safety and Health Administration (OSHA) released a proposed rule that would resurrect an Obama-era policy that allowed employees to designate third-party representatives to accompany OSHA inspectors on walkaround inspections of their employer’s workplace. OSHA says the proposed rule seeks to “aid OSHA’s workplace inspections by better-enabling employees to select a representative of their choice to accompany the Compliance Safety and Health Officer (CSHO) during a physical workplace inspection.” Specifically, OSHA proposes to revise 29 CFR 1903.8(c) to clarify that (1) a representative authorized by employees may be an employee of the employer or a non-employee third party, and (2) employees may authorize a third-party representative reasonably necessary to conduct an effective and thorough physical inspection of the workplace by virtue of their knowledge, skills, or experience. Story
California Is Adding Green Jobs. That Means More Labor Fights. The millions of dollars California is pumping into climate jobs are fueling long-simmering conflicts among the state’s powerful labor groups. Fights between environmental groups and labor unions multiply as the state adds green jobs. They’re threatening to slow California’s progress on climate change. “There is progress, but we’re not where we need to be,” said state Sen. Scott Wiener (D-San Francisco), whose bill to connect new buildings to the electrical grid more quickly stalled in June after labor unions accused him of trying to circumvent collective bargaining by making it easier to hire non-union contractors. Clashes over whether wildfire workers should be paid more and whether solar panel installers should also be allowed to install batteries are pitting labor unions against wildfire prevention advocates and a segment of the renewable energy industry.

Union representatives say a bill in the state Legislature to increase pay for workers who trim roadside brush and create fuel breaks in wildfire-prone areas will help attract more applicants. “We all want more forest mitigation done,” said Tim Cremins, political director for the Western region of the International Union of Operating Engineers, which is sponsoring the bill. “We want it done with a more skilled and better-paid workforce." The bill, AB338, draws opposition from rural counties that want to move faster on wildfire treatments. The state is already behind in meeting its forest management goals, and rural advocates say that adding a prevailing wage requirement could reduce the number of acres treated annually by more than a third. “We’re talking about a fuel break that could save a whole community in the event of a high-severity wildfire,” said Staci Heaton, a policy advocate for the Rural County Representatives of California, which opposes the bill.
Gov. Gavin Newsom vetoed a version of the proposal last year, saying he was concerned the change would delay essential fire preparedness work. It’s not clear what he thinks of this year’s bill, which is largely unchanged. Complicating the proposal this year is the late opposition by the state’s main electrical workers’ union, which represents workers thinning vegetation along utility lines and has been tussling with other industries over jobs it sees as its own.

This debate is heading toward compromise. According to people close to the discussions, Assemblymember Cecilia Aguiar-Curry (D-Winters), Newsom, and the unions are nearing a deal on the forest worker pay raise. The deal would require higher wages without the extra paperwork associated with a traditional “public works” designation, delay implementation, and carve out some exemptions for projects led by nonprofits.
And the CSLB is likely to settle on rules that limit non-certified panel installers to working on batteries below a certain size — a compromise that regulators expect will preserve work for certified electricians and contractors as demand increases.

However, lawmakers couldn’t resolve the conflict with IBEW over SB 284, a bill to open utility work to the same labor standards as public works projects. It was intended to speed up the connection of new buildings to electrical lines. This process in California can take months or years, delaying housing projects and other critical developments. The bill would have prohibited utilities from requiring union contracts for projects over $10,000. IBEW called it an “anti-union right to work provision.” The bill was shelved for the year shortly after that. Wiener said he hopes to bring the bill back next year. He said the building trades unions have backed wind energy and some other renewable projects, but the state is “not where we need to be” to build at the required pace. “We should never use lack of existing workforce as an excuse not to save the planet,” he said. “The solution is to save the planet and ramp up the workforce.”
And a slightly different take, Green Jobs Are More in Demand Than Nurses — And They Pay a Premium The number of “green” job openings has eclipsed the demand for licensed practical nurses, according to a new study. That means there are about 410,000 openings for green workers in 2022, slightly more than demand for LPNs — a job type historically and consistently in high demand — during that same time, according to a new report by workforce demographics firm Lightcast. About 1.4 million workers are employed in green jobs across the country. “Green jobs are on the rise, and the upward trend isn’t likely to change in the coming years," said Lightcast Senior Economist Rachel Sederberg. "With sectors like the auto industry, tech and even durable-goods manufacturing making efforts to be more environmentally conscious, we’re going to need more workers with green skills." Story [Alternate link]
So, How’s that IRA Working for You? The Chronicle’s Joe Garofoli noted recently: “President Biden and every Democrat on the campaign trail will spend the next year bragging about the Inflation Reduction Act, which they universally tout as the ‘biggest climate action investment in history.’ You will hear Democrats boast that the IRA, signed a year ago, includes $8.8 billion in tax credits and rebates to encourage people to buy energy-saving devices such as heat pumps.” One problem is that no one has received the rebates one year later, and it's unclear when they will happen. Story
Unions Up the Ante in LA.  Coming soon to Los Angeles: A provocative city ballot measure that would require hotels to rent vacant rooms to homeless people! The ballot initiative will go before voters next March after the Los Angeles City Council voted to place it on the ballot instead of enacting the controversial ordinance. It aims at the hotel industry in several ways, requiring that if a new hotel project demolishes or converts existing housing, the developers must build affordable units on or near the new hotel site.

?However, the most controversial part of the measure pertains to hotel vacancies. Hotels would have to report empty rooms to the city’s housing department. The city would then use pre-paid vouchers to place homeless people in those available rooms. Hotels would receive a “fair market rate” from the city for the rooms and be barred from refusing to admit someone using a voucher. The ballot measure is sponsored by Unite Here Local 11, which is in a contract standoff with Los Angeles and Orange County hotels. The union collected more than 126,000 signatures to qualify the measure for the ballot, far more than required. Kurt Petersen, co-president of Local 11, said he was confident voters would support it in March. “When housing is on the ballot, it wins.” A new ad campaign, which is produced by the Center for Union Facts, went up this week.
California Voters To Decide 11th Parcel Tax Ballot Measure This Year, 961st Since 2008 Voters in Santa Lucia Community Services District, a special district in Monterey County, will decide on a parcel tax ballot measure—Measure T—on Aug. 29. The measure will be the 11th local parcel tax ballot measure California voters have decided this year, and the 961st they have decided since 2008. Measure T would enact an annual tax of $954.67 on developed and undeveloped estate residential parcels. Revenue from the parcel tax would provide funding for the district's fire and EMS services. Owners of the parcels would pay the tax. A two-thirds vote is required to approve Measure T.
House Republicans Already Vying for Approps Opening WECA/Utah’s representative Chris Stewart’s decision to retire on Sept. 15 has triggered behind-the-scenes jockeying among younger Republican colleagues who want to claim his coveted Appropriations Committee seat. Conversations among GOP lawmakers eyeing Stewart’s spot have played out quietly so far, largely out of respect for the well-liked Utahn — who announced he would step down due to his wife’s illness. But House GOP Steering Committee members — the leadership-driven group that decides most gavels and committee assignments — told us they have already gotten taps on the shoulder from interested Republicans. Two steering committee members — Reps. Dave Joyce (R-Ohio) and Kelly Armstrong (R-N.D.) — said they’ve heard from first-term members hoping to get on the panel that boasts major sway over the federal spending process.
California Minimum Wage Increases Jan. 1 – What Employers Should Know The California Department of Finance recently notified the state's governor and legislative leaders that current economic conditions require an increase of the state's minimum wage from $15.50 per hour to $16 per hour for all employees on January 1, 2024. The change results from Labor Code section 1182.12, which requires the Director of Finance to determine on or before August 1 of each year whether adjustments to the minimum wage for inflation are to be made. Based upon recent federal data showing a consumer price index increase of 6.16 percent, the Department of Finance determined that a 3.5 percent increase to the minimum wage is required. As a result of the statewide minimum wage increase, employers must ensure that any California employees classified as exempt under the executive, professional, or administrative exemptions make at least $66,560 as of January 1, 2024. This is because the Labor Code defines the salary threshold for these employees as a multiple of the state minimum wage; when the minimum wage increases, so does the salary threshold amount. California employers should also be aware that a ballot initiative to increase the minimum wage to $18 per hour has qualified for a November 2024 vote (the Living Wage Act, Initiative 21-0043). Story
A Housing Loophole in Saratoga CalMatters recently reported on a State mandate to use Skilled and Trained Workforce. “One of the fiercest fights in California politics — one that divided union coalitions and led to the unceremonious death of many a housing bill— seems to have come to a quiet end in the San Jose suburbs. As CalMatters reported in May, of all the projects to break ground using of a closely-watched 2017 housing law meant to speed up the construction of apartment buildings, all but one were entirely set aside for lower-income residents – thus avoiding a strict hiring standard, backed by some of the state’s most powerful construction unions. The lone holdout — “the California housing policy equivalent of a unicorn” — was the Quito Village townhouse complex in the affluent Santa Clara County city of Saratoga. But there was a catch: PulteGroup, the project developer, wasn’t abiding by that higher standard. Why do we care? The union-backed “skilled and trained” workforce standard has been a sticking point for housing bills for years. When Sen. Wiener introduced a bill to renew the 2017 streamlining law this year, he removed that requirement for projects with market-rate units, arguing that it was too costly to produce new housing. The fact that even this one project didn’t comply with the rule seemed to support that argument. After CalMatters asked the City of Saratoga whether the Quito Village developer complied with the rule, officials asked PulteGroup. That’s where things stood when the CalMatters story ran. An update: In a lengthy letter dissecting the statute, a lawyer representing PulteGroup argued that state law does not require it to abide by the stricter standard. If true, the standard would only hold in 12 cities statewide. Anyway, the letter added, Wiener’s new bill is about to dispense with the old rules, so it’s a bit of a moot point. Crystal Bothelio, a spokesperson for Saratoga: After receiving that letter, “the City concurred.”
In a related story How Housing Activists and Unions Found Common Ground In California Over the last decade, whenever California lawmakers tried to pass new legislation aimed at boosting the state’s alarmingly low housing stock, they’d come face to face with a politically powerful barrier: organized labor. It wasn’t that unions wanted no new housing in California, but their top priority was ensuring that any new units would be built with unionized workers and that the nearly half a million members represented by the State Building and Construction Trades Council, or “the Trades,” as it’s locally known, would be well positioned to find good jobs in the future. Keenly aware of how sharply industry standards have declined in parts of the country with less union power and still reeling from job losses during the last recession, the Trades have assertively fought bills they deemed threatening to their way of life.
Another Arizona Senate Candidate Apparently undeterred by his loss to Sen. Mark Kelly last year, Blake Masters plans to jump into another Arizona Senate GOP primary, according to the WSJ’s Eliza Collins. His impending announcement could set up an intra-MAGA clash with Kari Lake, also widely expected to run. That would add even more chaotic dynamics to what could already be a three-way general election with independent Sen. Kyrsten Sinema and Democratic Rep. Ruben Gallego. Lake is still seen as the likely frontrunner in the primary over Masters, though.