Deep Dive Episode 199 – Pass or Fail? Grading the NLRB, EEOC, and DoL
Collectively the Department of Labor, Equal Employment Opportunity Commission, and the National Labor Relations Board play a pivotal role in almost every dimension of employment in the nation. This inaugural panel discusses recent developments in the regulatory regimes of each and grades their performance over the four years of the Trump Administration. Greg Jacob moderates the discussion and presses our speakers about the fairness and accuracy of their grades.
Although this transcript is largely accurate, in some cases it could be incomplete or inaccurate due to inaudible passages or transcription errors.
[Music and narration]
Introduction: Welcome to the Regulatory Transparency Project’s Fourth Branch podcast series. All expressions of opinion are those of the speaker.
Host: On September 27, the Regulatory Transparency Project hosted a webinar event titled “Pass or Fail? Grading the NLRB, EEOC, and DOL.” The following is a recording from that event. We hope you enjoy.
Nate Kaczmarek: Hello and welcome to this Regulatory Transparency Project webinar. Today’s theme is “Pass or Fail? Grading the NLRB, EEOC, and DOL.” My name is Nate Kaczmarek. I’m Vice President and Director of RTP. As always, please note that all expressions of opinion, including any grades issued on today’s program, are solely those of our speakers.
Today, we’re pleased to have gathered an expert labor panel, and fortunate to have Greg Jacob moderate this discussion. Greg is a partner at O’Melveny & Myers where he represents financial services companies, including banks, investment managers, healthcare payors, and insurers as well as other employers, in class actions and other litigation concerning ERISA and other labor and employment matters. He is a former Solicitor of Labor. And prior to rejoining his firm in 2021, Greg served as Counsel to Vice President Pence and was Deputy Assistant to the President. If you’d like to learn more about Greg’s career and those of our expert panelists, you can visit our website, RegProject.org, where we have their complete bios.
In a minute, I’ll turn the program over to Greg. Once the panel discussion is completed, we’ll go to audience Q&A, so please think of the questions that you’d like to ask them. Audience questions can be submitted during the program on Zoom by using the raise hand function, and we will call on you directly. With that, we’re looking forward to our experts’ grades and a great discussion. Greg, the floor is yours.
Gregory Jacob: Well, thank you, everybody, for joining us today. We’re really excited to be able to present this panel to you in which we have a panel of distinguished experts who will be grading the regulatory and deregulatory efforts of the Department of Labor, the EEOC, and the NLRB during the course of the four years of the Trump administration.
This panel has been a long time in coming. It was actually originally supposed to take place in March of 2020, but a little thing called the pandemic got in the way, and so we had to put it off and are now reconvening because these agencies just need their grades. And I’ll say we hope that the current administration is tuned in to this panel so that they can understand what they will need to do in order to get good grades in future assessments to come.
Before turning it over to our panelists, I wanted to let those who are watching the panel know the criteria that we developed by which to grade these agencies. The particular project that our panelists have undertaken is to grade the regulatory efforts specifically of these agencies, and there are three main criteria that we developed to grade them.
The first question is whether the agency in approaching regulations took measures to preserve freedom, free markets, and the rights of individual Americans. In assessing that question, our panelists considered, do the agencies’ rules trust Americans to make the best choices for themselves and their families? Do the agencies’ rules harness the power of free markets to minimize costs and enhance productivity? And do the agencies’ rules protect freedom of speech and freedom of conscience?
The second criteria that our panelists considered in grading the agencies is whether the agencies’ regulatory efforts appropriately balanced costs and benefits and were transparent about their costs and reasoning. Did the agencies appropriately regulate within the bounds of the Administrative Procedure Act? Were their cost-benefit estimates reasonable and transparent? And did the agencies follow Executive Order 13891 and treat guidance documents as nonbinding in law and practice?
And finally, our panelists assessed whether these agencies maintained the separation of powers in their regulatory efforts. Did the agencies regulate within reasonable interpretations of their statutory authority? And were these agencies following principles of federalism?
Well, we’re about to find out. Assessing the Department of Labor, we have our panelist Leon Sequeira who served as Assistant Secretary of Labor for Policy for President George W. Bush. Prior to that, Leon served as Legal Counsel in the Office of United States Senator Mitch McConnell. Earlier in his career, he served as Counsel of the United States Senate Committee on Rules and Administration. Leon is currently in private practice in Kentucky where he regularly litigates against the Department of Labor and advises clients concerning DOL regulations. Leon, please tell us, how did the Department of Labor do during the Trump administration?
Leon Sequeira: Thanks, Greg. I appreciate the opportunity to be here today. Just in case anyone is confused, that is the Department of Labor behind me. I am not standing outside of the Department of Labor, though. A little bit of magic of Zoom.
I want to take a few minutes just to highlight some regulatory initiatives at the Department of Labor, and I’m going to start by sharing my screen. I have a few slides to hopefully help make this a little more interesting. Let me just switch this to slide view.
Just in case anybody is unfamiliar with the Department of Labor, quick background. It is one of the oldest cabinet agencies established in 1913. They have about 17,000 employees, which makes them about 12th in the top 15 agencies by size. And their budget for 2022, the request anyway, just over $14 billion, which, not surprisingly, is an increase over what was enacted last year. If you count in the nondiscretionary part of their budget, it’s in excess of $41 billion. A lot of money, but still only about 10th out of 15 major federal departments.
The Department of Labor is a very large department with a number of subagencies within in it, many of which have rulemaking authority. In all, there are about a dozen or so agencies within the department that could issue regulations. We have limited time today, so I’m going to focus just on six that had notable rulemaking initiatives during the Trump administration.
Those six are the Employment and Training Administration, which is actually the largest agency that’s in the department by size of budget. That’s the agency that administers all the federal unemployment benefits. They have a number of other roles, particularly for our focus here related to foreign immigration or nonimmigration programs, H-1B, H-2A, H-2B, the green card, etc.
In addition, the Employee Benefits Security Administration, an agency with a very important role, primarily around ERISA. Then the Wage and Hour Division, again, an agency with very broad reach covering the Fair Labor Standards Act and a host of other federal labor and employment laws that apply to nearly every business in the economy. Then the Occupational Safety and Health Administration, similarly very broad mandate to ensure occupational safety and health across the economy.
Then a couple of smaller agencies, the Office of Labor Management Standards, which deals with union reporting requirements and transparency, and the Office of Federal Contract Compliance, which regulates federal contractors, primarily around the areas of equal employment opportunity.
As I indicated, not all of these agencies are created equally. The three larger agencies in this group would be the Employee Benefits Security Administration, Wage and Hour, and OSHA. ETA, OLMS, and Office of Federal Contract Compliance have a smaller reach but nonetheless are still important for those smaller sectors in the economy that they regulate.
Taking a look at regulations in these six subagencies, first ETA. Notable regulatory efforts during the Trump administration for ETA concern the H-1B program, that’s for high skilled visa workers, and H-2A, which concerns lower skilled temporary workers in agriculture.
The Trump administration attempted two separate regulations in this area. Both ultimately were enjoined by federal courts. They had significant problems with their compliance with the Administrative Procedure Act and their cost-benefit analysis, so those count negatively against them. On the plus side, they did have some success in making additional H-2B visas available, which did provide some market flexibility in the economy for employers that utilized that program. Overall, ETA came in with a D, in my estimation.
EBSA, Employee Benefits Security Administration, they took on a number of rulemaking efforts and completed several, including the fiduciary rule which had bounced around in various versions and been subject to some litigation over nearly two decades. In fact, that rule started when Greg and I were at the Department of Labor. They also completed an important rule on Association Retirement Plans and health reimbursement arrangements along with Treasury and IRS, and, significantly, implemented regulations providing for religious and moral exemptions under Obamacare that were in line with the executive orders from the president. Overall, EBSA came in, in my estimation, with a B.
Wage and Hour Division, again, very broad mandate covering virtually every employer in the economy. Wage and Hour undertook several regulations regarding joint employer status, calculating the regular rate under the Fair Labor Standards Act and the salary test for determining who’s eligible for overtime pay. Those regulations they did complete and generally did a good job meeting the criteria we’ve set our for grading, but they dropped the ball in a couple of occasions, including a regulation that they had underway for independent contractor status which they left undone at the end of the administration. So grading not only on what they accomplished but whether or not they worked to their full potential, as some of my teachers used to grade me on, I’m going to give Wage and Hour a C.
For OSHA, again, very broad mandate with safety and health in the workplace. They finally completed a rule on beryllium which had been underway for a couple of decades. OSHA regulations take quite a long time to complete. On the plus side, they also issued a simplified illness and injury reporting requirement for large employers. Those weighed on the positive side for them. They also started several new regulatory efforts. If you compare where they were in the fall of 2017, they had about 15 rules in proposed stage, or pre-rule stage. But by the end of the administration, that was up to 21, indicating significant future rulemakings are likely in the works.
Overall, I think OSHA earns a B as well. The regulations that they did undertake, they did a good job on. They did start or at least indicate that they’re going to start several in the future, which could be problematic, but we’ll visit those next time around.
Office of Labor Management Standards, again, a small agency not engaged in a lot of rulemaking, but during this administration had a couple of rules that they attempted, the first relating to trust reporting for unions. They got that one completed. They also had an additional rule that they started related to reporting for unions. They did not finish. The clock ran out on them. They probably would have been an A, but for not getting their work done, they also get a B.
And finally, the Office of Federal Contract Compliance, again, relatively small agency, not particularly active in rulemaking. In many administrations, though, they have been more active. They completed a rule on recognizing protections for religious entities which correspond with the executive order and provided more flexibility to businesses. I’m going to give OFCCP an A. So overall, mixed among the agencies.
A couple of additional things to consider. This is a 25 year history of the Department of Labor’s items on their regulatory agenda. As you can see, during the Trump administration, there was a pretty significant drop off in overall regulatory activity, which, on my grading scale, counts for something. And so there’s a little extra credit for DOL.
Their deregulatory efforts in general, they had the second highest savings across 25 departments and agencies, nearly $12 million by their estimation, or nearly a quarter of all savings from the deregulatory efforts by the Trump administration. DOL had 12 deregulatory actions for every significant regulatory action. Overall, lower average number of actions than they had in the prior administrations, as my slide showed. So they got credit for that as well.
On guidance, by their count, they rescinded more than 3,000 guidance documents. They also established a searchable webpage which still exists, and hopefully will continue to exist, where they have more than 8,600 guidance documents up. You can search them and find them. And in August of 2020, they even published a rule to set out how they would go about issuing guidance and using guidance in the future, a significant item for which they get credit. That rule, by the way, has subsequently been rescinded, but they get credit for doing it, nonetheless.
So overall, even though there was some mixed performance by some of the subagencies that dragged down DOL’s grade, overall, I’m going to give them a B. Back to you, Greg.
Gregory Jacob: Thank you, Leon. And thank you for the written materials here as well. We’ll be posting either today or during the course of the week these writeups so that people have direct access to the printed grades, the report cards, that will be memorialized for the future.
Next up is the EEOC, and that is going to be addressed by David Fortney. David previously served as Deputy Solicitor and Acting Solicitor of the U.S. Department of Labor during the term of President George H. W. Bush. He’s a co-founder of Fortney & Scott, LLC, a Washington, D.C. based law firm that counsels and advises clients on the full spectrum of workplace related matters, including employment discrimination, compliance programs, and government contract. I suspect that when we get into the panelist discussion, he may have somewhat different views of OFCCP’s grades, but we shall see. He regularly litigates against and before the Department of Labor and the EEOC.
And with that, David, take it away. Tell us, how did the EEOC grade out?
David Fortney: Super. Thank you. Greg, it’s great to be with you today, and certainly with the distinguished panel with both Leon and Glen. And I really enjoyed that discussion of the Labor Department.
Much like Leon found for the Labor Department, the EEOC is a bit of a mixed story. Some things were done well, other things not so well, and I’d like to walk through those for us. The interesting thing is the focus that we had here really is primarily on rulemaking and guidance.
And the EEOC, for those that aren’t familiar with it, does have some limitations. It does not have the same robust rulemaking authority that most of the agencies that Leon just discussed for us with the Labor Department enjoy. And that’s because Congress has said that under Title VII, for example, there is no legislative rulemaking authority, so the EEOC is limited in what other tools, guidances, and other descriptions and efforts they can put forward. Within those constraints, though, the EEOC during the Trump administration did find some interesting and I think creative and effective changes that were introduced.
First, we had two leaders that controlled the EEOC. First was the Acting Chair, Victoria Lipnic, and Vicky was there—let me get my date right—January ’17 until May of 2019. And then at that point, Janet Dhillon was confirmed as the Chair, and Janet remained as Chair, Chair Dhillon remained from ’19 until January of ’21 when the Biden administration commenced.
During that time, there was a fair amount of activities that I think actually were very beneficial. For example, some of these are similar to what Leon described for us at the Labor Department under that first category that Greg described that we’re applying, the preserving freedom, free markets, and rights of individual Americans. Part of that is basically do we, as members of the regulated public and taxpayers, actually know what these agencies are up to? Can we tell what they’re working on? Do they tell us what they’re going to be doing?
There was a number of changes that were implemented during the Trump administration to advance those goals and objectives. For example, publicly posting what the commissions’ votes were. It used to be as a total but opaque process, what they would vote on, when they would vote on it. That was changed. The actual content of votes, who voted for what. Remember, there are five commissioners, all of whom are confirmed. They serve at the pleasure of the president. But you can envision that if a commissioner were viewed as not fulfilling his or her responsibility, Congress could also become involved. So I think that that level of accountability, that is, publicizing votes and commissioners actions, is a very welcome change.
Disclosing the systemic program, the EEOC, it’s a volume operation. I get about 80,000 charges a year, depending on the year. And some of those are individual charges. Most of them are found not to be meritorious. A small number are. Some of those deal with systemic cases, which has been more the traditional bread and butter topics for the government. The commission has engaged in some changes in its systemic program so it will provide both the details of what the programs are and how the commission is going to choose. In other words, which charges is it going to prioritize? What are the values that it’s seeking to pursue? That, again, and transparency, enabling us to understand what they’re doing, is valuable.
Also, as the Labor Department did, they did put a searchable index up on their website which still remains today. And I also join in hoping that that remains.
Now, with respect to what regulations were issued, there were a handful of them. There was a legislative regulation under what’s called the wellness regulations, and that deals with the Affordable Care Act, and implementing the Affordable Care Act, and whether there are potential violations of the Americans with Disabilities Act, as well as GINA, dealing with personal medical information.
There were some regulations that originally had been put in place by the prior administration, by the Obama administration. Those ultimately were put on hold. And finally, new regulations were put forward that ultimately were withdrawn. That, I think, is helpful, but the ultimate issuance of new regulations that may have comported a little more with what the statutes require did not get done. That is a disappointment.
With respect to interpretive regulations, there were some that were extremely helpful. Now, these are not legislative regulations, but they’re interpretive regulations. As all the agencies had to address when COVID hit starting in March of 2020, in addition to interrupting our program, it interrupted how all the agencies operated too. And the EEOC, I think, gets high marks. They came out of the blocks pretty quickly. They’re not allowed under Title VII to issue specific regulations, and rulemaking is a very extended process.
They did, however, start a process in March of 2020 whereby they have promulgated detailed guidance on whether collecting information on vaccinations, asking people whether they’re vaccinated, does that violate the ADA? Are there Title VII violations? What do you do with that information under the EEO statutes if you collect it? So those interpretations have been posted, and the EEOC did better than many agencies. They actually date stamped when they posted their guidance up there, and I think that’s been very helpful for a number of members of the regulated public as they’ve tried to thread their way through the COVID pandemic.
I would also add that the EEOC actually appears to be following its guidance. In other words, what it said would not constitute a violation, at least as we’ve studied it, we have not found instances where the EEOC has violated it’s own guidance, which is not always the case.
Another important regulation that was issued, it was a procedural regulation, but it was very important, and it dealt with conciliation. What do you have to do to conciliate in good faith? Now, this regulation that ultimately was issued followed a Supreme Court case in Mach Mining, and it had some basic information. You have to tell an employer what the violation is. You have to tell the employer what the theory is. You have to tell the employer what the damages are because the statute says you’re supposed to conciliate in good faith. That, I thought, was an excellent regulation. They get an A.
I would add a footnote that’s outside the temporal scope of our program. The new administration, the new Congress, exercised a Congressional Review Act, first time ever in the history of the EEOC, and has eliminated that conciliation regulation. So although they get a very high grade for putting it in place, it barely saw the light of day because it was within 100 days, which also means that in the future, absent further congressional action, no further regulations in that space.
And it might not surprise you that the career people were highly upset that there would be a standardized approach, or that the EEOC would actually have to conciliate by telling you what the claims are, what their theories were. So this was one that I know the employer community was very disappointed to see this regulation be vacated.
Another example where, although they lacked some rulemaking authority but where the agency went forward in a novel and effective way during the Trump administration, was the issuance of opinion letters. This was something that the Wage and Hour Division — and Leon’s report mentioned that they did a good job, I think, on a number of things. They issued a lot of opinion letters.
But not coincidentally, a key member from the Wage Hour team actually came to the EEOC and became a commissioner, that’s today, Commissioner Keith Sonderling, and Commissioner Sonderling has led the effort. They published four opinion letters during the administration. Those have not been rescinded. However, it’s quite clear we won’t be seeing any further opinion letters. So that is — they get very positive marks for that.
A very controversial effort that was undertaken was the collection of compensation data. The Trump administration — the EEOC inherited a comp data collection using the EEO-1 annual reports on workforce data and were required by the rules put in place to collect the data. Quite sensibly, the EEOC, when reconstituted, looked at that and said, “You know what, we’re not sure that the cost-benefit analysis justifies the burden of having every employer in this country with 100 or more employees report on comp data with respect to these very broad categories,” what are called EEO-1 job groupings. That, in my view, a very sound decision.
Unfortunately, it was challenged in court by the National Women’s Law Center. The court had a different view and said, “No, EEOC, you shall collect the data. You shall go forward and collect it.” EEOC, after following litigation, complied with the final order, collected two years’ worth of data, and then said, “We’re going to study this further.” That effort is underway. National Academy of Sciences has been retained to again study.
I might add, historically, the NAS said that it was not worth the benefit. That’s what the prior Trump EEOC said. This isn’t worth the benefit. However, one judge did not agree with that, and that, in the end, was all the counted. But the collection of pay data, I think, was handled well.
So where does that leave them? There was one other thing that I think is interesting historically, and it just shows that it doesn’t depend on the outcome because we’re really focused on sound process too. During the Trump administration, the scope of Title VII and whether it did or did not protect LGBT protections was a hotly contested issue. And it ended up, you will recall, before the U.S. Supreme Court. And many people were surprised. The Supreme Court said, “Yes, Title VII, by protecting against sex discrimination, encompasses or includes LGBT protections.”
The Justice Department under the Trump administration had taken a contrary view. What is interesting when you’re in the weeds here on the agencies, the EEOC as a semi-independent agency did not agree with the Justice Department, and indeed would not change its view, even though the Justice Department repeatedly requested that the EEOC reconsider or take a view that aligned with the Trump administration DOJ’s view.
The reasoning was that the position of the EEOC had been adopted through a commission vote. The change, it was felt, would require a commission vote. And I might add by way of footnote, based on how the commission was staffed at that point, it was clear that the view would not have changed.
So we do have a level of autonomy, transparency. At one point, it did result in some awkward governance with the government taking directly opposite positions in litigation before the Court with the EEOC standing up with its independent litigation authority that it enjoys and saying that Title VII covered LGBT, the U.S. Department of Justice intervening to say to the contrary. And of course, the Second Circuit in that case was left really scratching its head.
Final point. Because a lot of the EEOC changes are more on governance and procedure, Chair Dhillon took on what had been a 25 year drift in accountability. The general counsel had enjoyed great delegation of authority to decide what cases would be litigated. And indeed, that authority had been further delegated all the way down to the regional lawyers such that the commissioners, when you’d talk to them, often would learn of cases being filed by reading in the newspaper, just like we do.
Well, okay. That to me, personally, seems a little nuts, and I give the leadership credit. They thought that was a little nuts too. They were there to be accountable, to make the decisions. So that authority was pulled back as part of this transparent voting. So today, every litigation decision is made by a vote of the commission, whether to sue an employer or not or a union. And I think that practice is sound. That goes back to accountability and transparency.
So one of the criticisms that the EEOC did suffer from, and it’s a little bit what Leon pointed out at the Labor Department, was what I called they just ran out of runway. They were starting to hit on these things, but they just did not — rulemaking, guidance, making changes is measurable not in days or weeks, or even months. It usually takes a couple of years to do it expeditiously and to do it well. So the changes that they got done, most of them, I think, were very good, very positive in terms of transparency, accountability, cost effectiveness. I would give the commission a B+.
Gregory Jacob: Thank you, David, for that presentation. And now we’ll finish off the primary presentations by addressing the National Labor Relations Board, which will be addressed by Glenn Taubman.
Glenn is a Staff Attorney for the National Right to Work Legal Defense and Education Foundation where he has handled high profile labor law issues since 1982. He regularly appears before the National Labor Relations Board and various federal courts representing individual employees only and is the author of Neutrality Agreements and the Destruction of Employees’ Section 7 Rights and co-author of Union Discipline and Employee Rights, a monograph published by the National Right to Work Foundation. Glenn, take it away.
Glenn Taubman: Thank you, Greg. Thank you, Leon and David. And thanks to The Federalist Society for putting this on. I appreciate your being here with us.
The National Labor Relations Board is a five-member body whose members are nominated by the president and confirmed by the Senate for staggered terms. And for those of you who don’t know, the National Labor Relations Board is not really a regulatory agency per se, but it functions more like a labor court. And it’s a labor court that makes rules by individual case adjudications in either unfair labor practice or representation election cases.
Now, on occasion, the NLRB utilizes formal rulemaking procedures under the Administrative Procedures Act to create nationwide policies. And while these policies have more permanence than case adjudications, they also take much longer to promulgate than simple adjudications. And they use much more agency resources. And up until recent years, the NLRB did not use their rulemaking powers, and it was extraordinarily rare for them to do so. But in the recent, let’s say, decade or so, they’ve started to do this more. And I think this is a commonality with what David and Leon were saying. It takes a huge amount of agency resources at the NLRB to put a rule through, and we’ll get to that in a minute as I discuss the grade.
Now, the NLRB has a general counsel who is often called the most powerful person at the agency because he or she acts as a gatekeeper who determines which unfair labor practice cases and issues actually get to the board for a decision. And the Supreme Court held in a case called NLRB v. UFCW Local 28 that the general counsel has unreviewable discretion to bring a case before the board, or not to bring a case before the board. So for this reason, I’ve given two grades, which I’ll get to, one for the board itself and one for the general counsel.
Now, before I go into what the Trump board was doing in its tenure, I just want to go back and give a little bit of a review of what they faced when they came into office because the Obama NLRB had destroyed employee free choice and saddled employees and employers with huge regulatory burdens and uncertainty. It has been said that the Obama board overturned some 4,000 years of case precedent in its zeal to do the bidding of labor unions.
For example, the Obama labor board handed employees over to unions via coercive card checks and neutrality arrangements. They made decertifications or withdrawals of recognition difficult or impossible. In other words, it was easy for employees to organize and get into a union but very difficult to get out. They restricted employees’ abilities to resign or revoke dues authorizations. They hindered employee’s ability to enforce their rights under the Beck decision to not pay for that portion of their money that goes for union politics.
And of interest to employers, they created microunits so unions could get into tiny units instead of company wide units. They created this joint employer situation where one company was responsible for the acts of another company. And they also made independent contractors more likely to be employees.
So that was the agenda of the Obama board that the Trump board faced when it came into power. And the Trump board arrived with high hopes that these disastrous policies would be reversed and that some of the NLRA’s aged and encrusted doctrines blocking and barring employee free choice would be reversed.
So the Trump board used both case adjudications and rulemaking with mixed results to try to protect employee rights, to foster regulatory certainly, and to roll back some of the worst of the Obama board policies. And the Trump appointed general counsel, Peter Robb, made sustained and valiant efforts to reign in and right-size the bureaucracy and ensure employees’ rights were protected until he was unceremoniously and possibly unlawfully discharged on January 20, 2021, in a partisan coup engineered by the Biden administration. It was the first time that an NLRB general counsel was ever fired prior to the end of his term. So that’s the background.
Now, moving forward. First, we’ll start with the Trump board. I’ll say up front I give the Trump board a grade of C. The Trump board deserves a C. On the plus side, they issued quite a number of well-reasoned and some excellent decisions rolling back some of the Obama board agenda that I have just described dealing with joint employers and microunits and Beck rights. Some of their case decisions, which they issued relatively quickly, were excellent. That is the plus side.
The negative side for the board and the reason why I give a C is for three main reasons. First, the Trump board was slow to make many changes necessary to protect employee rights, choosing to leave many issues to cumbersome rulemaking proceedings rather than doing so via faster case adjudications. And this is true. Even when fully litigated cases were presented to this board, they oftentimes said, “No, we’re going to wait for this rulemaking,” which in some cases never came.
Second, the Trump board failed to eliminate many of the arbitrary and non-statutory bars that were encrusted on the act by prior boards and that prevented employees from exercising their rights to choose in secret ballot elections whether they wanted to be represented by a union. And since employee free choice is the touchstone of the act, the board could have and should have done more to protect these rights.
And finally, in the last few months of the Trump board, they were very unproductive, issuing few decisions. And I can tell you over the decades when there have been changes in administration, the outgoing board will usually issue a tremendous amount of decisions on their way out the door. But this did not happen in the Trump administration. They were virtually silent in the last few months. They issued no important decisions in the last few months. And many, many important, fully briefed cases and fully tried cases, were left sitting there.
So I understand that the Trump board’s progress was halted by the fact that President Trump lost the election, and the new Biden board is coming in. But that doesn’t change the accomplishments or lack of accomplishments that occurred up until now.
And finally, in contrast to the Trump board’s C grade, I would like to give the grade A to General Counsel Peter Robb. Peter Robb was the most pro-worker general counsel in my lifetime. He placed many critical issues before the board and didn’t shy away from placing those issues before the board, issues dealing with inadequate union financial disclosure, neutrality and card check agreements, employee’s right to revoke those check-offs, employee’s right not to pay for union lobbying and other partisan activities. He brought all of these issues forward, expecting decisions from the board. And we got them in some of the cases, but not all of them.
And finally, General Counsel Robb attempted to centralize decision making in his office to make the law more predictable; in other words, taking some power away from the regional staff and centralizing it in D.C. so that there would be more consistency and more accountability within the general counsel branch of the NLRB. So for all of these reasons, Peter Robb gets an A, and I suspect that’s part of why the Biden administration decided to fire him 20 minutes after the president was sworn in because, in fact, he deserved an A.
With that, I will wrap up and just say a C for the Trump board—they could have done better—and an A for General Counsel Peter Robb. Thank you.
Gregory Jacob: Well, thank you to all the panelists for the primary presentations. I have a question that I want to ask each of you, and then I want to give each of you one opportunity to either comment on each other’s presentations or ask a question to one of the other presenters. And then I’m going to go to questions from our audience.
The question that I want to ask each of you — this was an enterprise of assessing the regulatory or deregulatory efforts of the department. All of you commented in one way or another on ways that the agencies, through rules or through guidance, bound themselves to decide cases in a particular way, transparently told the regulated community, “This is the way we’re going to do things.”
There were other instances in which these agencies had the opportunity to bind themselves in some way, to issue clear guidance or to issue regulations that said, “This is the way we’re going to do things,” but simply failed to do so at all, sometimes, arguably, to foster what some would call regulation by enforcement, the power to use ad hoc regulation case by case to do what the agency wants to do without having to be accountable to the rules that they have put forward. I think this is what Justice Scalia would have called the complete opposite of the rule of law as a law of rules.
So my question to each of you is just to what extent did you take into account in doing your grades whether these agencies engaged in regulation by enforcement, by ad hoc enforcement, instead of tying their own hands? Leon, I’ll put it to you first, and maybe you could just go in order.
Leon Sequeira: Sure. Thanks, Greg. It’s a great question because, unlike the, by comparison, relatively easy approach I think Glenn and David had, DOL is a multi-headed monster. And experiences could differ from agency to agency, so I did not take enforcement into account in my grading. I suspect that might have ended up somewhere different.
But again, depending on the agency, practitioners could have different views, particularly, I spent a lot of time litigating against the Wage and Hour division. I have very definite ideas about enforcement. I don’t deal with EBSA at all, but I bet Greg has a lot to say about the enforcement efforts of Employee Benefits Security Administration.
So I would just say on an ad hoc basis for my impression litigating against Wage and Hour, including having several cases pending right now with this very issue about whether they’ve taken an ad hoc enforcement approach related to guidance and unique interpretations of regulation, it’s a serious problem. And I would not grade them well in that criteria, at least with Wage and Hour. And again, experience may differ at various other agencies within the department.
David Fortney: I would add to that, it’s interesting the point that Glenn was making regarding the general counsel. I also should have referenced that Sharon Gustafson who had been the general counsel, her term was also cut short by the incoming administration. So I view that as indicative of when — and there similarly was a great deal of autonomy in case selection and enforcement, and even more so with the changes I described that particularly Chair Dhillon put in place. But the general counsel, she was summarily removed from that position, again, just as with the labor board, was there for a fixed term unless the president thinks otherwise. And that hasn’t been sorted out.
But with respect to issue, I want to highlight one, what I thought was a stunning disconnect that occurred in the Trump DOL. And Greg, you sort of previewed it, and I’m sorry, I just can’t help myself. It’s in OFCCP. OFCCP issued guidance in how it would evaluate compensation. It was grouped — they issued guidance on how they would evaluate compensation, and they would look at it by groupings in certain ways.
Simultaneously, they, just like a runaway freight train, continued on a litigation theory that had been developed by the prior administration that conflicted with their own guidance with the thought of, well, what can we do? That was filed, I might add, in the last 48 hours of the Obama administration. But this became sort of a mantra that it was filed by the prior administration, and there’s nothing we can do.
I do think that the EEOC, in contrast, I think that Sharon and I think that Chair Dhillon specifically did a good job of being willing to relook at what had been prioritized and to reprioritize it and redecide it. And I will tell you, they often met the howls of protest from some of their career people, which sometimes is a good indication that you’re depowering those that have enjoyed levels of autonomy and lack of accountability, and putting it forward to those that we do hold accountable, and putting sunshine on the process. So I think that those points are worth noting. Glenn?
Glenn Taubman: Greg, it’s a great question whether agencies live up to their own regulations. The question, though, doesn’t really apply in the National Labor Relations Board context because for those who practice before the board and who know the board, traditionally, they’ve always decided issues by case adjudication, and it’s been extraordinarily rare up until recent times that they’ve used rulemaking at all. So I don’t think there’s much of an issue of, well, did they adhere to their own rules because there really haven’t been that many rules.
I think that the thought process behind the rules that have come in during the Trump board was, well, let’s put these rules in because it’ll be harder to take them out. If you have to put in a rule through notice and comment, you have to take it out through notice and comment.
But the problem is the Biden people, I’m sure, are going to be taking out all of these rules that have already been put in. So the Trump board took an enormous amount of time and effort to promulgate these rules. They’re probably going to come out anyway by the Biden board. And to my money, they would have been better off ignoring the rulemaking process and just deciding the fully briefed cases that Peter Robb had teed up. But instead, a lot of them have fallen by the wayside. So that’s my take on your question.
And I just want to say one thing while I have the floor. I was remiss in not telling the audience that somewhere on the FedSoc RTP website is the report card that one of my colleagues and I created. So if you want to see in more depth what our report card was and what cases we discuss, you can go to the website and see our report card. Anyway, thank you.
Gregory Jacob: And I do particularly commend that report card to you. It really provides some great detailed insight into the doings and misdoings at the NLRB during those years.
So we’re going to go to questions from the audience. If you have a question, you can click the raise hand button at the bottom of your Zoom screen. And we will start with a question from Bob Nagel.
Bob Nagel: Hi there. Can you hear me?
Gregory Jacob: Yes.
Bob Nagel: My question is for Mr. Taubman. I shared your dismay at the board’s lack of productivity over the last several months of the majority term, or where the Trump appointees had a majority of the board. To what extent do you think that that was a function of Chair McFerran taking the reins on January 21 versus any other contributing factor?
Glenn Taubman: I think that was a large factor. There’s no question about it. The chairman of the board probably — and I’ve never been employed by the board. I’ve never been on the board. I’m not an inside the beltway guy, so I’m only speculating as to how it actually works in the bowels of the agency. I’m sure the chairman of the board can find ways to drag feet and to slow things down.
But even having said that, at the end of the day, for a lot of these months, there was a Trump majority. And at least in the way I look at it, three outnumbers one, and they should have been able to get a lot of these decisions out. There were many, many critical decisions that have been left hanging, and I somewhat shudder to think was comes next. But they should have been able to get these out. But yes, to your question, I’m sure Chairman McFerran had things to do with the delay.
Bob Nagel: Thank you.
David Fortney: Greg?
Gregory Jacob: Yes?
David Fortney: One point that just occurs to me, that question about who’s running the ship makes a difference. The Labor Department is really the story, not the tale of two cities, but the tale of two secretaries. And the latter half of the Trump administration when Gene Scalia was Secretary of Labor, which is a span to last approximately 15 months, I felt there was a noticeable uptick in many of the changes, and that’s kind of why they ran out of runway.
And I would say the same is true with Chair Dhillon at the EEOC. These were both folks, but due to the circumstances, they weren’t confirmed until the second half and later in the second half of the Trump term. And as a result, some of the impact of their leadership and direction wasn’t fully felt.
Gregory Jacob: Yeah. And in that vein, Leon, one question I would put to you — and again, anybody in the audience who would like to ask a question, just hit the raise hand button and I’ll call on you. But in terms of getting people confirmed, Cheryl Stanton was nominated early on to be the administrator of the Wage and Hour Division. It took two full years to finally get her into the post. And to the extent that — and it seemed that your primary criticisms of Wage and Hour Division in terms of bumping them down to a C was that they kind of ran out of runway at the end. Do you have an assessment as the extent to which the Democrats in Congress really effectively cut that runway off by depriving the department of that leadership?
Leon Sequeira: Undoubtedly. I think that was a factor, although the other side of that equation is that has historically been the trend for the Wage and Hour administrator going back several administrations. It takes an exceedingly long time to have that position confirmed.
But I think just as a general matter at the Department of Labor and at other agencies as well, the Trump administration, in my view, suffered from not fully staffing up the leadership positions. Not all of those required Senate confirmation. Certainly, a lot of them did. But being shorthanded, even at DOL throughout the entire term, was a hindrance in, I think, accomplishing many of their policy and regulatory priorities. I think that’s a lesson for future administrations.
Greg, when you and I were there, we heard a lot the saying that personnel is policy, or policy is personnel, and that’s true. You can have a great plan and a great vision, but unless you have people in place to execute, it’s going to be difficult because you’re not going to be able to rely on the career staff to get it done.
Gregory Jacob: Why don’t we go to our audience for a question from Ray LaJeunesse?
Ray LaJeunesse: A question for Glenn Taubman. What one issue that was fully briefed before the board did you find most disappointing in the board failing to decide it?
Glenn Taubman: Well, it’s hard to give one because there were several important cases dealing with employees’ right to revoke dues check-offs that have nationwide implications. Especially as more states become right-to-work states, the employees want to revoke their check-offs. And then they’re told, well, you can’t because you signed this paper with fine print, so you can’t get out. That was an issue that was left open.
There were issues regarding neutrality agreements that were left open. So I could catalog some of these, but I would just say there were quite a number. And I’m speaking from the point of view of individual employees. I know that members of the management community also felt like many of their issues were left over. So it’s hard to quantify and just say which one was the most important.
Gregory Jacob: Let me ask one final question to close things out here as we’re getting to the close of the hour. And this is about OSHA, so Leon, you can jump in on it, but our other panelists since this has been much in the news may have views as well.
Obviously, there’s been a lot of attention to the recent Biden executive order requiring OSHA to issue an emergency temporary standard requiring employers with more than 100 employees to vaccinate their employees. But there was a lot of pressure during the course of the last year of the Trump administration for OSHA to issue an ETS on imposing all kinds of workplace restrictions for COVID.
OSHA instead went down a pathway of working collaboratively with the CDC to issue a series of guidance on meat packing plants and other work environments to help things be safe. But to what extent did OSHA’s approach to the COVID year factor into your grade, and how would you assess those efforts?
Leon Sequeira: I did not specifically factor in their response to COVID because I did focus strictly on the regulatory efforts with some deference to guidance. So from my view personally, I think OSHA took the correct approach with regard to COVID. Certainly, opinions could differ on that.
I find the current administration’s approach troubling just for the seemingly one-size-fits-all approach that they’re taking to it. A hundred employees seems to me to not be a very defensible threshold in a time when people work remotely or not in close proximity. And trying to draw the line when you have 100 people dispersed, perhaps across a city or even a country, and someone who has 90 employees working side by side in close proximity, it seems to undercut any sort of health rationale for the approach.
So I find the approach previously taken by OSHA to be more conducive to free markets and allowing more freedom and flexibility as opposed to the approach that they seem to be headed towards now. But I’d be interested in other’s views.
David Fortney: I think that Secretary Scalia was under enormous pressure to issue an ETS in response, and that was particularly the case when we did not have any vaccine, and it was, frankly, a little unclear as to how the virus was spreading, and all the different protocols. And I think that he did what has proven to be a very sound job in making those judgements, which, by the way, were subjected to repeated judicial review and challenges, all of which were successfully pushed back by the Labor Department saying, no, this is ultimately — we do have an area of expertise and authority, and we have a proscribed statute. It isn’t that we just do something generally. It has to meet very specific criteria.
And I think previewing, perhaps, what I think is perhaps the fate of what President Biden has proscribed, a one size that likely fits not many to none, the prior Labor Department approach, which was much more nuanced and focused, recognizing different threats to different industries and tailored responses, not per se rulemaking, was probably the right approach at that point.
Gregory Jacob: That’ll end our panel presentation. I’ll hand it off to Nate to close things out. But I just want to thank all of our audience for tuning in to this, for your good questions. Again, you can go to the website to get the specific report cards. And thank you to all the panelists for your insightful remarks and for these grades for the agencies. With that, Nate?
Nate Kaczmarek: I just want to echo our gratitude at RTP, a great expert analysis, and appreciate everyone’s willingness to go on the record with your grades. We look forward to having you all with us again soon. Audience feedback is always welcome by email at [email protected]. Have a great day.
Conclusion: On behalf of The Federalist Society’s Regulatory Transparency Project, thanks for tuning in to the Fourth Branch podcast. To catch every new episode when it’s released, you can subscribe on Apple Podcasts, Google Play, and Spreaker. For the latest from RTP, please visit our website at RegProject.org.
This has been a FedSoc audio production.
Co-Founder, Fortney & Scott LLC
and former Chief Legal Officer, U.S. Department of Labor
Former Assistant Secretary of Labor for Policy
U.S. Department of Labor
National Right To Work Legal Defense Foundation
O'Melveny & Myers LLP