On Tuesday, the United States Court of Appeals for the Sixth Circuit, based in Cincinnati, Ohio, won the lottery to hear the consolidation of thirty-four petitions filed by more than two dozen Republican attorneys general, industry groups, corporations, and labor unions challenging the Biden Administration’s recently-enacted rule mandating vaccines or weekly testing for employees of large companies, which applies to more than 80 million private sector workers and was issued last month. The regulation was promulgated by the Occupational Safety and Health Administration (OSHA) as an “emergency temporary standard” which, pursuant to § 6(c) of the Occupational Health and Safety Act, may be invoked when workers are “exposed to grave danger” from, as one possibility, “new hazards.” Under OSHA’s regulation, employers with 100 or more employees must “develop, implement, and enforce” a policy mandating that their employees either receive a COVID-19 vaccination or wear face-coverings at work and undergo regular viral testing.
The lottery process, mandated by federal law and overseen by the Judicial Panel on Multidistrict Litigation, is required when multiple civil actions involving common questions of fact are filed in separate Circuits. Pursuant to the federal statute (28 U.S.C. § 2112(a)(3)), the various petitions must be consolidated before one Court of Appeals, designated by the Judicial Panel “by means of random selection” from among those in which lawsuits have been filed. All twelve Circuits were in the running, as petitions for review of OSHA’s regulation were pending in each, and the Ohio-based Sixth Circuit Court of Appeals, dominated by Republican–appointed judges, including six Trump appointees, was ultimately chosen via ping-pong ball raffle on Tuesday afternoon.
Several major unions filed legal challenges against the OSHA regulation in a strategic attempt to steer the consolidated litigation into a more favorable Circuit. The Massachusetts Building Trades Council, for example, contested the rule in the First Circuit; SEIU Local 32BJ filed in the Second Circuit; United Association of Journeymen & Apprentices in the Fourth; and the Denver Newspaper Guild in the Tenth, each of which boasts a majority of judges appointed by Democratic presidents. Additionally, United Food & Commercial Workers filed a lawsuit in the DC Circuit, which is evenly split between Democratic and Republican-appointed judges. Most of the union petitions didn’t make legal arguments against or in favor of the OSHA regulation, though SEIU, in their brief petition, charged that the rule “fails to adequately protect all workers who face a grave danger from COVID-19 exposure in the workplace,” and a UFCW representative explained that the union is seeking to “strengthen the worker protections to ensure that as many workers are covered as possible.” In any event, the legality of the Biden Administration’s vaccine-or-test policy is widely expected to end up being decided by the ultraconservative Supreme Court.
Though, as Kevin explained on Sunday, healthcare conglomerate Kaiser Permanente reached a tentative agreement with more than 50,000 of their workers to avert a massive strike that was set to begin on Monday, the company will still face a mass walkout in Northern California this week, as more than 60,000 frontline healthcare workers, nurses, optometrists, technicians, laboratory scientists, and mental health clinicians, represented by the Service Employees International Union-United Healthcare Workers West, the Office and Professional Employees International Union Local 29, the Engineers and Scientists of California Local 20, and the California Nurses Association, are slated to walk off the job on Thursday and Friday. The workers have decided to protest in support of the more than 700 biomedical engineers at the facility, represented by Stationary Engineers Local 39, who have been on strike for more than eight weeks, 24 hours a day, demanding wage increases after their contract with the giant national healthcare company expired in September.
In Boston, Michelle Wu (D) was sworn in as the 56th Mayor of Boston on Tuesday, becoming the first woman and first person of color to hold that office, despite the fact that Boston is one of the nation’s oldest cities. As I noted two weeks ago, Wu was endorsed by several major unions operating in the City, and on the campaign trail she espoused commitment to a broad vision of economic justice and worker empowerment. “Michelle is focused on confronting wealth inequality and building economic prosperity through a commitment to labor rights,” reads her campaign website, where she further insists that “Boston must proactively affirm the right of all workers to organize and bargain collectively” and “must also support the creation of worker-owned cooperatives.” Wu also promised to establish a Cabinet-level Chief of Worker Empowerment to, among other things, ensure accountability for wage theft, workplace safety, and labor law violators, educate and empower workers, and support worker-owned cooperatives. Additionally, while campaigning for the job, Mayor Wu committed her administration to “tackling wage theft,” “guaranteeing a fair work week,” “combating wealth inequality” and “closing the racial wealth gap.” As a member of the Boston City Council, Mayor Wu introduced an ordinance that would require all city contractors to provide their workers with notice before changing their schedules, sponsored a paid parental leave measure, signed into law by then-Mayor Marty Walsh (D) in 2017, and filed a resolution in support of state legislation to establish a domestic workers’ bill of rights, which was passed by the City Council and signed into law by then-Governor Deval Patrick (D) in 2014.
In the latest news on Congressional Democrats’ once ‘big, bold’ budget reconciliation package, the Build Back Better Act, which conservative Democrats have since whittled down to a $1.75 trillion framework, economists and analysts in leading rating agencies have found that the social spending package will not add inflationary pressures in the American economy, according to a Reuters report released Tuesday, which has been one of conservative Senator Joe Manchin’s (D-WV) express concerns with the bill. William Foster, Vice President at Moody’s Investors Service, one of the Big Three credit rating agencies, explained that the legislation “should not have any real material impact on inflation” and the impact on the fiscal deficit will similarly be small, because the spending is spread over a relatively long period of time. Mark Zandi, Chief Economist at Moody’s, agreed, adding that “the bills do not add inflation pressures” because the spending will “help to lift long-term economic growth via stronger productivity and labor force growth, and thus take the edge off of inflation” and that “the bills are largely paid for through higher taxes on multinational corporations and well-to-do households.” Similarly, Charles Seville, Senior Director at Filch Ratings, another one of the Big Three, affirmed that the legislative package “will neither boost nor quell inflation in the short-run.” The Congressional Budget Office has announced that it will release a complete cost estimate for the Build Back Better Act by Friday, November 19, though CNN reported yesterday that top Democrats are expecting the report to show that the legislative package will fail to vindicate President Biden’s claims that his spending plans would not “add a single penny” to the federal deficit, in contrast to a recent analysis by the Joint Committee on Taxation, which concluded that the legislation would be unlikely to add to the deficit. Nonetheless, President Biden asserted on Tuesday that he is confident the bill will be passed within a week.
Finally, the wave of labor agitation and union organizing continues to spread throughout the country. In New York City, more than 100 staffers at the New York Times protested outside The Times’ headquarters in Manhattan on Tuesday, accusing the newspaper of delaying contract negotiations with their union. The Times Guild, which represents more than 1,000 journalists, reporters, and editors at The Times, has been bargaining for a new CBA with The New York Times Company for nearly eight months. In South Burlington, Vermont, school bus drivers for the city’s public school system overwhelming voted to unionize. Citing “low wages, a grueling working schedule” and the “hardest working conditions in years,” 23 of the 24-member bargaining unit, consisting of drivers and bus monitors, voted to join the South Burlington Educators Association and the National Education Association. Relatedly, an article published in The Guardian yesterday explained that “the drivers of the vehicles that shuttle America’s children to and from school are now caught in the wave of labor unrest sweeping across the US” and noted that strikes, walkouts, and protests among school bus drivers have occurred this fall in nearly a dozen states across the country, forcing some districts to temporarily close schools, modify schedules, or raise pay and offer bonuses. To invoke the perceptive words of one Chonta Henderson, a school bus driver in Florida quoted in the article, “The problem is not a bus driver shortage — the problem is a bus driver salary shortage.”