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Union Gig Brings NLRB Suspension

The National Labor Relations Board suspended one of its regional directors for a month after it was discovered that he solicited money from unions he regulates for a pro-labor organization that he ran.

Walsh, who heads the board’s Philadelphia office, earlier had been given permission by his bosses to continue heading the Peggy Browning Fund, as long as he was not fundraising.

The organization funds scholarships and fellowships for young attorneys to pursue careers in labor law intended to help achieve “worker rights and workplace justice.”

“The local union officials and their representatives make a donation, get drinks and dinner and hang out with the decision maker for the NLRB cases,” as the NLRB inspector general described it.

“Why wouldn’t a rank-and-file unit member who filed a duty of fair representation charge or a charged employer perceive that the union officials had some special access to the NLRB process?”

The IG also pointed out that “it’s a perfectly reasonable and logical assumption. Unfortunately, it is a perception that could taint over half of the charges in Region 4.”

Walsh confessed to discussing fundraising strategy and permitting his name to be used on invitations to fundraisers. He believed this was appropriate as long as he didn’t directly ask for donations.

After the issue was raised, the NLRB revoked its permission for Walsh to chair the fund and asked him to make sure his name and title were removed from the organization’s literature.

Walsh had worked with the fund since it started in 1997 and became its chairman in 2011. During those years he worked for the law firm that founded the fund and served as a career official with the NLRB and Federal Labor Relations Authority.

EEOC Transgender Warning Is Issued

The transgender bathroom issue has garnered headlines regarding North Carolina’s new law and President Obama’s thunderbolt order from on high about public educational institutions, but employers have dealt with it for a while now.

Those requirements were stiffened in a new directive issued by the Equal Employment Opportunity Commission, which recently brought suit against two employers for discriminating against transgender employees (AA, 5-15-16, P. 3).

EEOC published a “fact sheet” on May 3 which amounts to a regulatory policy statement by other means. It informs employers that providing unequal bathroom access in the workplace will be treated as a civil rights violation.

Referencing the North Carolina situation, the commission also said it will not allow employers to rely on contrary state law as a legal defense.

Bowing to the ideological view of gender as a social construct rather than a biological imperative, EEOC explicitly states that “a person does not need to undergo any medical procedure to be considered a transgender man or a transgender woman.”

The commission said this means that employers cannot:

  • Deny an employee equal access to a common restroom corresponding to the employee’s gender identity is sex discrimination.
  • Condition this right on the employee undergoing or providing proof of surgery or any other medical procedure.
  • Avoid the requirement to provide equal access to a common restroom by restricting a transgender employee to a single-user restroom instead (though the employer can make a single-user restroom available to all employees who might choose to use it).

In June 2015, OSHA also published an employers’ guide to providing transgender employees with access to restrooms that correspond to their gender identity.

STB Proposes Rail Investigation Rule

The Surface Transportation Board proposed a rule to handle future rail service failure investigations.

In 2014 parts of the West and Midwest were in the grip of a major series of service failures that left mounds of grain rotting besides tracks, waiting for trains that never came.

In response Congress passed reform legislation in 2015 called the STB Reauthorization Act. It gives the board authority to start investigations on its own initiative, but only if the issues investigated deemed to be of national or regional significance.

The board also was permitted to adopt accelerated procedures for handling rail rate cases, which it announced earlier this year (AA, 4-15-16, P. 4).

“The act provided the board with important new authority to investigate issues of national or regional significance,” said STB Chairman Daniel R. Elliott III. “The rules proposed today will put procedures in place for using that authority.”

As proposed, the STB would begin with a staff preliminary fact-finding study which would lead to a formal investigation which the law says must be concluded within a year.

A formal proceeding would determine whether the law has been violated. However, it can only order remedies to be applied prospectively.

The STB also recently opened rulemaking to implement the new law that amends existing rail rate dispute arbitration rules. It would replace the current $200,000 cap on damages with a $2 million limit for practice disputes (including demurrage, accessorial charges, and misrouting/mishandling rail cars, among other issues) and establish a $25 million limit for rate disputes.

“We hope that the changes being proposed will lead to greater use of arbitration as an alternative to litigation before the agency,” Elliott said.

Aging Infrastructure Comes at High Cost

Between 2016 to 2025 it will cost every family in the United States an average of $3,400 a year because of the inefficiencies arising from inadequate infrastructure, says the American Society of Civil Engineers.

Congress continues to wrestle with the dilemma of how to fund the $305 billion five-year surface transportation program it enacted last December which lacks adequate funding mechanisms.

Between now and 2025, the investment needs scored across 10 infrastructure areas total $3.3 trillion, the May 10 ASCE report notes. However, planned investment into the infrastructure is only $1.8 trillion, leaving a $1.4 trillion investment gap.

ASCE also projects that this investment gap will grow to $5.1 trillion by 2040 if investment rates continue on their current trajectory.

“If we want our economy to thrive then we need to invest in its backbone,” says Greg DiLoreto, chair of the ASCE Committee for America’s Infrastructure. “Instead we’ve allowed it to live on borrowed time, and are paying the price of its inefficiencies every day.”

The area with the greatest investment shortfall is surface transportation, with needs totaling more than $2 trillion and an investment gap of $1.1 trillion, the study finds.

Although federal highway spending has now stabilized, it remains at a level that is still 23% less (in inflation adjusted terms) than it was in 2002,

At the state and local level, road maintenance funding remained stable (in inflation-adjusted terms) in recent years, but capital investment is 30% less than it was in 2002 ASCE points out.

Another recent study by the trucking industry found highway congestion added more than $49.6 billion to trucking costs in 2014 (AA, 4-30-16, P. 5).

OSHA Issues Temp Worker Guidance

OSHA issued two new guidance documents reminding temporary staffing agencies and their clients that they are both jointly responsible for temporary employees’ safety and health.

OSHA chief David Michaels, stressed that “host employers need to treat temporary workers as they treat existing employees.”

He adds, “Temporary staffing agencies and host employers share control over the employee, and are therefore jointly responsible for temp employee’s safety and health. It is essential that both employers comply with all relevant OSHA requirements.”

The agency has issued other guidance documents in the past but the two new ones are intended to reemphasize employers’ responsibilities.

They are called: Temporary Worker Initiative Bulletin No. 4 – Safety and Health Training and Temporary Worker Initiative Bulletin No. 5 – Hazard Communication.

OSHA urges temp agencies and clients to contractually specify division of responsibilities, but points out that neither can contract away compliance obligations.

In most cases, the host employer is responsible for site-specific training and hazard communications; and the staffing agency is responsible for generic safety and health training (including hazard communications training).

Nonetheless, the staffing agency is responsible for ensuring that employees receive proper site-specific training, and must have a reasonable basis for believing that the host employer’s training adequately addresses potential hazards.

In addition, while the staffing agency may have a representative at the host employer’s worksite, responsibilities for site-specific training do not transfer to the staffing agency, the Seyfarth Shaw law firm explains.

Training provided to temporary workers should be identical or equivalent to the training given to the host employers’ own employees, OSHA notes.

Injury Reports Aim to ‘Shame’ Employers

OSHA issued final rules requiring employers to file injury and illness reports electronically, with the agency intending to post them on the Internet in an effort to shame employers with high injury rates.

As of Aug. 10, companies with 250 or more employees in industries covered by the recordkeeping regulation must electronically submit OSHA injury and illness Forms 300, 300A and 301. Establishments with 20-249 employees in certain industries need only submit OSHA Form 300A.

By Aug. 10 employers also must create procedures for workers to report illnesses and injuries, and establish standards for preventing retaliation against employees who file such reports.

The new rule will massively expand OSHA’s collection of employer injury and illness data from about 80,000 employers to 478,000. Also changed a number of requirements pertaining to employers’ procedures to lessen the threat of retaliation against employees for reporting of injuries and illnesses.

After it was proposed, business groups said that the rule change will only serve to create a target-rich environment for union organizers trolling for members and tort lawyers seeking big paydays.

But OSHA chief David Michaels says the real goal is public shaming of careless employers. “Since high injury rates are a sign of poor management, no employer wants to be seen publicly as operating a dangerous workplace.”

He adds, “Our new reporting requirements will ‘nudge’ employers to prevent worker injuries and illnesses to demonstrate to investors, job seekers, customers and the public that they operate safe and well-managed facilities.”

A secondary motivation, Michaels says – something he only included after making the previous statements – is that access to injury data will also help OSHA better target its compliance assistance and enforcement resources at establishments where workers are at greatest risk.

One paradox is that OSHA’s approach actually works against employers trying to develop proactive safety programs, according to attorney Howard Mavity of the law firm of Fisher & Phillips.

“This ‘regulation by shame’ strategy will continue to focus employer efforts on the lagging indicators of workplace injuries instead incentivizing the leading indicator activities that actually prevent injuries,” he declared.

He cites comments filed earlier by President Michael Belcher of American Society of Safety Engineers: “The rule’s emphasis on data collected after injuries and fatalities occur is a step backward for safety professionals who work hard to move organizations toward measuring leading indicators, which better indicate how to avoid injuries and illnesses.”

Belcher stresses that injury and illness rates “were never intended to be used as a performance measurement, but that’s exactly what’s going to happen if they are published.”

OSHA’s anti-retaliation requirements may also have the effect of discouraging post-accident drug and alcohol testing. That’s because the agency claims post-incident testing deters injury reporting. says the law firm of Littler Mendelson.

OSHA apparently believes that only narrowly tailored post-accident testing – testing where drug use likely contributed to the accident and that accurately tests for impairment – will be immune from enforcement action under the new rule.

If OSHA finds that an employer drug testing policy deters reporting, the employer could face steep penalties, Littler Mendelson warns. Those penalties will increase substantially in August when they rise to as much as $12,471 per violation and as much as $124,712 for willful violations (AA, 4-15-16, P. 2).

However, OSHA holds that testing conducted in compliance with federal or state laws will not be considered violations. Employers who are required to conduct post-accident testing under Department of Transportation rules can continue to do so.

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