President Joe Biden lost no time in making sure pro-union officials were put in charge of federal agencies like the Occupational Safety and Health Administration (OSHA) and the National Labor Relations Board (NLRB)—in the case of OSHA, acting before he was even sworn in as President.
On Jan. 19, his transition team reported that former union official James Frederick would be named deputy assistant secretary of labor for occupational safety and health, a non-Senate confirmed position, to serve as acting chief of OSHA until a full-time director can be nominated and approved by the Senate. At the same time, it was announced that Joseph T. Hughes will serve as deputy assistant secretary for pandemic and emergency response for OSHA, an agency of the U.S. Department of Labor.
Before his appointment, Frederick served as a consultant for ORC HSE Strategies, providing employers with advice and assistance with regulatory and legislative matters. He also assisted with assessment and integration of health and safety management systems for clients.
Before that, he worked as the assistant director of the health, safety & environment department of the United Steel, Paper and Forestry Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union (USW), which is considered to be the largest industrial union in North America.
During his 20 years working for the union, Frederick testified before congressional committees and federal agencies regarding safety and health issues, including workplace violence, beryllium, silica, hazard communications and ergonomics.
Hughes formerly served as director of the National Institute for Environmental Health Sciences Worker Education and Training program, which provides grants to unions and nonprofit organizations for training workers regarding occupational safety and health issues.
It isn’t known whether President Biden intends to eventually nominate Frederick to become the permanent head of OSHA, which would require approval by the Senate, and could end up taking many months to obtain after the nomination is submitted. This is likely the reason the President moved so quickly to get these two officials in management positions.
“Frederick and Hughes will likely play a significant role in jump-starting the Biden administration’s workplace safety agenda,” observe attorneys Michael T. Taylor and Adam Roseman of the Greenberg Traurig law firm.
This includes, among other things, assessing the need for and enacting enforceable Emergency Temporary Standards (ETS) requiring employers to take steps to protect workers from contracting COVID-19 in the workplace. In an executive order signed Jan. 21, Biden has commanded that OSHA issues its decision on ETS no later than March 15.
Upheaval at the NLRB
In a separate development, on Jan. 20—only 26 minutes into his presidency while inaugural ceremonies were still underway—Biden’s staff fired NLRB General Counsel Peter Robb after he refused a request to resign. What was shocking about this is that unlike attorneys working in similar positions at other federal agencies, the NLRB general counsel is approved by the Senate to serve for a set term and Robb’s term is not due to expire until this November.
In addition, before NLRB Deputy General Counsel Alice Stock could take Robb’s place to serve as Acting General Counsel, she was fired by Biden, too. So far, the move to force out Robb has shocked members of the employment bar who have chosen to comment on it. These actions leave the board with no general counsel and quite possibly violate federal law. It is not sure at this point whether any members of the equally divided Senate will publicly object to the president’s actions.
“Involuntary termination of an NLRB General Counsel apparently is unprecedented and has never been tested for legal validity,” points out David P. Phippen, an attorney with the law firm of Constangy Brooks Smith & Prophete. For example, after President Trump took office, he made no attempt to replace Democrat NLRB General Counsel Richard Griffin until his four-year term expired at the end of October 2017.
In another action, President Biden removed board chairman John Ring, a Republican, from that position and installed sitting Democrat board member Lauren McFerran as the NLRB’s new chairman. Ring will continue to serve as a board member.
The chairman position historically has been considered largely ceremonial and comes with little real power. In the past, it was the general counsel who selected which cases came before the board, and who supervised administration of the NLRB’s regional directors.
The abrupt personnel actions taken by the new administration suggest the possibility of a strategy that could be intended to afford the new chairman more direct control over board operations and policy direction, as opposed to the “first among equals” kind of role that position has represented in the past.
The current board members and the ends of their terms are:
• Lauren McFerran, Chairman, Democrat, term expiring December 16, 2024.
• William Emanuel, Republican, term expiring August 27, 2021.
• John Ring, Republican, term expiring December 16, 2022
• Marvin Kaplan, Republican, term expiring August 27, 2025
• (Vacant seat, term expiring August 27, 2023.)
As you can see, three board members—a majority of the five-member body—are Republicans. Even if the President can get a Democrat nominee confirmed by the Senate for the currently vacant seat, the earliest he can create a board majority is following the expiration of William Emanuel’s term at the end of August.
“Federal labor law is likely to see a huge shift as the Biden team goes to work,” Phippen predicts. “Employers and others who may be affected should monitor developments and begin now to consider how they will stay out of harm’s way. The challenge will be providing viable and profitable employment opportunities in a much more difficult, risky and expensive environment.”
