With a new administration now occupying the White House, the trucking industry could soon see changes in the regulatory landscape. From what I have seen so far, it is not too promising. In December 2020, President-elect Biden named Pete Buttigieg as his nominee to be Secretary of Transportation. His nomination was confirmed on 2/02/2021, making him the youngest person ever to serve as Secretary of Transportation. But what bothers me most is his lack of experience – he was the Mayor of South Bend, Indiana, with a population of just 102,037 people. Now, he will preside over 1.5 million drivers across the United States.
Then, on 1/07/2021, it was announced that President-elect Biden selected Martin (Marty) Walsh to serve as the United States Secretary of Labor. What bothers me most is not so much that he was the former Mayor of Boston, but that he served as Union President of the Laborers’ Union Local 223.
Next, the Biden Administration chose to freeze pending Department of Labor (DOL) regulations that would have made it easier to designate workers as independent contractors. This rule was previously to take effect March 8, 2021. A new and finalized similar rule from the Equal Employment Opportunity Commission (EEOC) has similarly been frozen. With these issues in mind, I was prompted to join several other (20-25) organizations and write the following letter to the President, dated February 23, 2021.
Dear Mr. President:
On January 20, 2021, your Inauguration speech emphasized national unity and the importance of all Americans working together. Minutes after you took your Oath of Office, however, you delivered an ultimatum to NLRB General Counsel Peter Robb to resign or be fired by 5:00 p.m. that day. Fortunately, Mr. Robb did not resign and is resisting your termination decision. The following day, on January 21st, you continued with a similar demand that Mr. Robb’s Chief Deputy Counsel, Alice B. Stock, also resign or be fired by 5:00 p.m. that day. Ms. Stock also refused to resign, and you proceeded to terminate her. These actions certainly were inconsistent with your call for unity, and we, the undersigned, state our strong opposition to such extreme decisions.
The removal of an incumbent General Counsel of the NLRB is an extraordinary breach of longstanding precedent that threatens to upend the independence of that office. No president since the establishment of the independent Office of General Counsel to the NLRB in 1947 has ever removed a sitting General Counsel before the end of their term. During this 73-year period, both Democratic and Republican presidents have considered unilateral removal of various NLRB general counsels and have properly concluded that such an action was not a good decision from both a legal and policy perspective. The longstanding precedent has been to permit general counsels to complete their term even if it continues into the term of a different political party occupying the White House. A recent example of this was the decision to permit former Democratic NLRB General Counsel Richard Griffin to serve the remainder of his term 10 months into the Trump presidency, notwithstanding General Counsel Griffin’s consistent pattern of taking positions contrary to the administration’s position on various labor law issues.
When Congress passed the Taft-Hartley Amendments to the National Labor Relations Act (NLRA) in 1947 to create the independent Office of General Counsel, it explicitly specified that the term of the General Counsel would be four years. As with other term appointments, the purpose of establishing a set duration for the General Counsel’s term was to ensure that the presidentially nominated and Senate-confirmed individual holding the office would be free from undue political influence or interference. The General Counsel is integral to the adjudication of cases under the National Labor Relations Act. He or she is expected to enforce such duties to the best of his or her ability, without regard to the political or policy preferences of any given administration. Your extreme and unprecedented actions of firing Mr. Robb and Ms. Stock – reportedly due to pressure from organized labor leaders – suggest a troubling notion to the contrary. If these actions are allowed to stand, they will politicize enforcement and undermine the effectiveness and credibility of the NLRB, now and in the future.
We, therefore, request that you reconsider your decision to remove Mr. Robb and Ms. Stock. We further request that you immediately reinstate Mr. Robb to his lawfully held General Counsel position and allow him to complete his term, which expires November 16, 2021. We also request that you immediately reinstate Ms. Stock to her Deputy General Counsel position.
Wayne Schooling, President & CEO
NorthAmerican Transportation Association
With the passage of California’s controversial Assembly Bill 5 in 2019, Governor Gavin Newsom (D) and other Golden State legislators enacted the first state law in the U.S. to regulate freelance workers and independent contractors as full-time employees, with the result being lost income and fewer job opportunities for California-based freelancers and independent contractors. In a tweet on May 26, 2020, former Vice President Joe Biden stated his support for AB 5 and his opposition to the proposed ballot measure backed by Uber and Lyft that would partially repeal it.
This is not the only new California law Biden has endorsed. In addition to supporting AB 5, in February congressional Democrats subsequently introduced and passed the PRO Act, a federal version of AB 5. The PRO Act would take AB 5, along with all of its adverse consequences for workers, national. If Democrats hold the House, while capturing control of the Senate and the White House (which they did), there is a good chance AB 5 effectively becomes the law of the land with the enactment of the PRO Act.
The PRO Act opponents point out that worker rights are undermined by the bill’s federal gutting of state Right to Work laws, which protect workers from being forced to join and funnel money to union bosses as a condition of employment. Right to Work laws simply give workers the freedom to decide whether or not they would like to join and pay dues to a union. In the 23 states without Right to Work laws, workers can be forced to join and fund a union as a condition of employment. This is not so in the majority of states with Right to Work on the books. Here’s hoping our freedom of choice is not deleted in the years to come.