GOP Labor Lawyer Said to Be Tapped to Run Union-Auditing Office

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By Ben Penn

Arthur Rosenfeld, a veteran Republican labor official, is awaiting final clearance to be named director of the Labor Department’s Office of Labor-Management Standards, sources familiar with the decision tell Bloomberg Law.

Rosenfeld, who was general counsel at the National Labor Relations Board in the George W. Bush administration, would be the Trump administration’s first political hire at the OLMS. The fiscally hamstrung office enforces the Labor-Management Reporting and Disclosure Act. The agencies priorities haven’t crystallized this year, but the OLMS drew criticism under prior Republican administrations for perceived labor movement harassment.

Some GOP lawmakers and members of the business community are hopeful that under Labor Secretary Alexander Acosta, the OLMS will boost its budget and enforcement capacity to restore a level of transparency for union members that they say wasn’t seen under President Barack Obama.

The sources, who spoke on condition of anonymity, said they had been briefed that Rosenfeld is waiting for background check approval before his appointment becomes official.

Rosenfeld joined the DOL in recent months as a senior counselor, a department spokesman told Bloomberg Law Dec. 8. The spokesman didn’t provide a comment Dec. 13 on Rosenfeld being in line for OLMS director.

Observers familiar with Rosenfeld’s reputation in Washington told Bloomberg Law that he’s a traditional conservative lawyer but not the type of right wing hard-liner one might expect to rubber stamp the employer community’s OLMS wish list. Under George W. Bush’s Labor Secretary Elaine Chao, the office conducted full-scale audits of national and international unions for alleged union official embezzlement and ballot-stuffing at union officer elections. It was armed at the time with about twice the number of full-time employees OLMS has today, as the Obama administration shifted enforcement resources to investigate businesses for wage and safety misconduct.

“We have no personnel announcements at this time,” a White House spokesman told Bloomberg Law, when asked of the status of Rosenfeld’s vetting.

FMCS, Senate Background

Rosenfeld’s term as the NLRB’s chief prosecutor from 2001-2006 coincided with Acosta’s nearly one year on the labor board from 2002-2003. Rosenfeld was then appointed as director of the Federal Mediation and Conciliation Service, a post he held for the final three years of the Bush White House. The FMCS works to help parties resolve labor-management conflicts.

He was also the senior labor counsel for the Republicans on the Senate Health, Education, Labor and Pensions Committee from 1997-2001.

Although Rosenfeld’s government service doesn’t directly involve the LMRDA, his extensive background in labor-relations makes him a common sense pick for the OLMS post, sources said.

“I think he would be an outstanding head of OLMS, if that’s what he chooses to do and if that’s what the administration decides,” Hal Coxson, a shareholder at management-side law firm Ogletree Deakins, told Bloomberg Law. Coxson said he has been friends with Rosenfeld for a long time, but that wasn’t aware of his prospective OLMS appointment.

Rosenfeld’s 2017 return to government agency work as a DOL senior counselor wasn’t publicly announced until his name appeared on the administration’s amicus brief filed Dec. 6 in the closely watched Supreme Court labor case Janus v. AFSCME. Rosenfeld, working in conjunction with other DOL lawyers and the Justice Department, argued that public sector unions violate nonmembers’ constitutional rights by requiring them to pay “fair share” fees to cover the costs of collective bargaining.

This is Rosenfeld’s second stint at the DOL, after arriving in 1986 and holding a range of positions , including as a career civil servant attorney in the Clinton administration.

Worker Center Scrutiny?

Rosenfeld, a graduate of Villanova Law School, began his legal career in 1979 as a labor attorney at the U.S. Chamber of Commerce. That was before the Chamberlaunched an initiative focused on OLMS activity regarding worker centers. In recent years the business group argued that the OLMS should treat worker organizing centers as labor unions subject to LMRDA filing requirements.

The Obama OLMS had its budget reduced to about $40 million per year, and focused attention on providing transparency into employers’ union-avoidance activity.

When Acosta was recently asked at a House panel hearing whether he would task OLMS with scrutinizing worker centers for being union front groups, the secretary replied, “It’s something that we’re looking at.” Such reporting requirements could impose severe burdens on worker centers, particularly the smaller, less-sophisticated operations.

Nathan Mehrens, an OLMS senior attorney under Chao, is now back at the DOL as the acting assistant secretary for policy. Mehrens spent recent years at the conservative organization Americans for Limited Government advocating for the OLMS to begin treating worker centers, such as Restaurant Opportunities Centers United and OUR Walmart, as unions. He was said to be in line for OLMS director earlier this year, meaning the selection of Rosenfeld for the job could serve as welcome relief for the labor movement.As union density has plummeted, worker centers have gained influence by giving employees a voice on the job without engaging in traditional collective bargaining with employers that would make them subject to the LMRDA and National Labor Relations Act.

To contact the reporter on this story: Ben Penn in Washington at bpenn@bloomberglaw.com

To contact the editors responsible for this story: Chris Opfer at copfer@bloomberglaw.com

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