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October 2015

Deadlines loom for a divided Congress...

In a familiar scene that seems to be played out every year at this time, the badly splintered U.S. Congress runs from critical deadline to critical deadline in order to avoid a government shutdown or the termination of popular spending and tax programs.

Congressional leaders barely avoided a government shutdown at the end of September by pushing through a temporary extension of federal spending until December 11.  But, that merely put off the decision for a few weeks and did nothing to resolve the deep fissures, particularly in the Republican controlled House, over conservative insistence that any measure to continue funding government programs must include an end to federal funding for Planned Parenthood.

Leaders in both parties will push for any extension beyond the December 11 date to be for at least two years because no one wants to face another government shutdown threat in the heat of next fall’s presidential election.

Meanwhile, the Treasury Department has been using emergency measures for several months to avoid exceeding the government’s borrowing limit.  But those measures will run out by mid-November or early December at the latest.  So a must-pass increase in the debt limit will present another chance for brinkmanship.

Funding for the federal Highway Trust Fund, which has been chronically in trouble because construction outpaces federal gas tax revenues, runs out at the end of October.  Extending that program will further complicate negotiations over the larger continuing appropriations bill for the federal government.

And, then there are the ever-popular tax extenders, a collection of “temporary” tax breaks which Congress extends year after year.  In hopes of avoiding the need to address these breaks every year, the Senate Finance Committee earlier this summer approved a two-year extension.  But it’s more likely to come up in December as a one-year addition.

TSCA reform stalled over a totally unrelated issue...

After nearly 40 years of trying to revise and update the federal Toxic Substances Control Act (TSCA) and despite 60 co-sponsors from both parties, two senators are keeping the Senate from voting on TSCA unless the Senate first reauthorizes the federal Land and Water Conservation Fund (LWCF).

The LWCF has nothing to do with regulating toxic substances, but more on that in a moment.

At this writing, the bipartisan Senate bill, which was approved by the Senate Environment and Public Works Committee four months ago, is stalled in the Senate because Sens. Richard Burr, R-NC, and Kelly Ayotte, R-NH, are refusing to allow limits on amendments to the TSCA legislation.

While the 60 co-sponsors assure the votes to block a filibuster, any move to bar amendments to the bill requires unanimous consent.  Burr and Ayotte have promised to withhold their consent unless a totally unrelated amendment to reauthorize the LCWF in allowed.  And without an agreement to limit amendments, opponents of the TSCA reform bill could tie it up for months with hundreds of amendments.

The LWCF was created in 1965 to provide funds for the acquisition of land, water and easements to create parks, national forests and recreation areas.  It is funded by oil and gas fees for offshore drilling.  While not overly controversial, House conservatives who advocate selling off federal lands could tie up a TSCA bill that contains the LWCF measure.  Backers of the TSCA reform plan worry about burdening the chemical regulation measure with any unneeded baggage.

The good news for TSCA reform advocates is the support of Democratic Sens. Edward Markey, MA, and Richard Durbin, IL.  They had held back from sponsoring the TSCA bill over concerns about the federal government preempting more stringent state regulations.  But, they made a deal with the bill’s sponsors, Sens. David Vitter, R-LA, and Tom Udall, D-NM, to permit more parallel state regulations.

Nearly 40% of mandatory injury reports lead to OSHA inspections…

New injury reporting requirements imposed by the Occupational Safety and Health Administration (OSHA) have resulted in site inspections of nearly 40% of the company’s reporting injuries and accidents.

These inspections come as the Justice Department has announced it will push for criminal prosecution of individuals and companies for OSHA safety violations.

Starting this past January 1, employers have been required to report to OSHA within 24 hours of any employee being hospitalized overnight.  The old rule required such a report only if three or more workers were hospitalized.  The new rules also mandated reporting any amputation or loss of an eye within 24 hours.  The regulation did not change the existing requirement that an employer report any employee’s on-the-job death within eight hours.

OSHA reported recently that it has received 200-250 mandatory reports weekly from employers since the first of the year.  OSHA said that 37 percent of those reports have resulted in site inspections.

In a report on this situation, the law firm of Barnes & Thornburg LLP points out that the U.S. Justice Department last month announced it would start pushing for criminal prosecution of individuals and companies for willful violations of OSHA safety standards that result in the death of an employee.  They recommend that all employers conduct a careful review of their safety procedures and their policies for policing compliance.

New Pacific trade faces a rough road in Congress…

Here’s a question for you:  What Obama administration initiative is strongly opposed by Donald Trump and conservative Republicans on the one hand and by self-described socialist Sen. Bernie Sanders and many liberal Democrats on the other?

The answer is the sweeping new Trans-Pacific Trade Agreement (TPP), which faces months of loud and divisive debate in Congress and an uncertain path in the future.

Even President Obama’s former Secretary of State, Hillary Clinton, has announced her opposition to TPP.

The TPP comes at a time that populists of both the left and the right are attacking free trade and charging that previous Obama trade deals have sent U.S. jobs overseas and largely benefitted our trading partners.  On the other side, business and manufacturing leaders argue that the U.S. must reassert its leading role in trade and halt China’s efforts to become the dominant supplier of everything to everybody.

While business groups generally back the pact, some large industries are adamant in their opposition.  Pharmaceutical companies are screaming because TPP would cut the 12-year patent monopoly on their drugs down to as little as five years.  And, tobacco companies are upset over limits on their legal remedies when foreign governments limit tobacco use.

Organized labor, particularly unions representing manufacturing workers, will oppose TPP as a basic threat to U.S. jobs.  They will be a powerful force in the congressional debate over TPP.  Environmental groups are upset over what they say is a lack of environmental protection in TPP.  Hillary Clinton cited both—plus security concerns—as reasons she opposes TPP.

But the strangest bedfellows on this issue are the politicians of the far right and far left.  GOP conservatives in Congress and on the presidential campaign trail argue that trade deals such as TPP do nothing but export U.S. jobs—a refrain that’s echoed by liberal Democrats and their supporters in organized labor.

Finally, the timing of this agreement is crucial.  President Obama must wait 90 days before he can sign it and submit it to Congress for approval.  That will put TPP in the spotlight early next year, when presidential politics in both parties will heavily influence this discussion.

NLRB says employers can't muzzle a worker's right to talk to the press...

Companies can’t stop their employees from talking to the news media about pay and working conditions the National Labor Relations Board (NLRB) said in a complaint against lending giant Quicken Loans.

The NLRB complaint said that the company’s employee rules warning workers not to speak with the news media violate the National Labor Relations Act protections for employees to discuss pay and other workplace policies as part of their right to organize unions.

Quicken Loans called the NLRB ruling complaint “completely absurd” and will challenge it before an NLRB administrative law judge next month.

Previous NLRB rulings have prohibited employer policies restricting what workers post on social media such as Facebook and Twitter, but this case goes to the broader First Amendment right to talk with the media.

Commenting on the NLRB complaint, Marick Masters, a professor and director of labor studies at Wayne State University, said the NLRB takes “a pretty dim view of policies that are over-broad. If you tell an employee that they can't complain to other employees about their working conditions, you're going to get in trouble for that. If you tell an employee that they can't talk to people on the outside about their working conditions, you're going to get in trouble for that."

Supreme Court to rule on a key case involving union dues…

In a case that could deal a heavy blow to organized labor, the U.S. Supreme Court has agreed to decide whether public employees can be forced to pay union dues even if they are not members of the union.

The justices agreed to consider a challenge brought by California teachers who argue that they shouldn’t have to pay any dues if they decline to join the teachers’ union.  They want the court to overturn its own 1977 earlier ruling which held that non-members can be required to pay for a public-employee union’s collective bargaining efforts but not for its political activities.  The teachers challenging that rule argue that collective bargaining itself is political and they should not have to pay any part of the dues.

While this case involves public employee unions, it could open the door to a potential ruling that extends to all unions.  Organized labor groups warn that is precisely the purpose of this case, which is being sponsored by conservative legal groups.

Supreme Court experts note that the justices have already signaled their uneasiness with the 1977 decision in Abood v. Detroit Board of Education, the ruling that said non-union employees could only be forced to pay for non-political union activities.