Punching In: Labor Board Counsel Wishlist Shaping Up


Monday morning musings for workplace watchers 

By Chris Opfer and Ben Penn


Imperial General Counsel? | Pre-emption Push | Passing the Joint

Chris Opfer: Jennifer Abruzzo’s rein as the National Labor Relations Board’s acting general counsel will be a short one if the Senate keeps up its end of the bargain. Lawmakers are scheduled to vote this week on Peter Robb’s (R) nomination for the board’s top lawyer job. The vote comes just days after outgoing general counsel Richard Griffin (D) wrapped up his term.

We’ve talked quite a bit in this column about just how important the general counsel’s role as prosecutor and gatekeeper is to shaping board activity. It turns out that at least one heavy hitter in the labor world wants to take a closer look at that power. The Chamber of Commerce and its lawyers are particularly interested in exploring what Robb may be able to do if and when the five-member board finds itself locked in a partisan split. Chairman Phil Miscimarra’s (R) term expires next month, which could leave the board with two Republicans and two Democrats.

“I think the goal is to study the range of the GC’s authority to act on his own,” Ron Meisburg, a former Republican board member and general counsel, told me recently. Meisburg is working on a whitepaper with the Chamber. “To identify the actions that are within the General Counsel’s sole discretion under the law.”

The GC gets his or her power from a couple of sources, including the National Labor Relations Act, delegations from the board and the always ambiguous “custom and practice.” Given that the White House has yet to nominate a replacement for Miscimarra, the Chamber may not be the only ones taking another look at how much the board’s lawyer can do.

Ben Penn: The business community would also like to see Robb wield some of that authority outside of the board’s case docket, at least according to an attorney who was once up for the same general counsel gig.

Roger King, labor counsel for the HR Policy Association, says the large companies he represents would like to see the board file amicus briefs in court cases challenging labor-friendly state laws and local ordinances. 

The Chamber of Commerce’s lawsuit arguing that a Seattle law allowing Uber and Lyft drivers to unionize is preempted by the NLRA would present an ideal chance for the NLRB to weigh in on the side of business. But as multi-state employers look to the board to argue state and local laws are preempted by the federal statute, their case for a uniform legal landscape may ignite opposition from Republicans who want to limit the federal government’s power. 

CO: I thought states were supposed to be laboratories for democracy. Between King’s comments and the paid leave bill introduced in the House last week, business groups seem to prefer setting overarching labor and employment requirements at the federal level, at least while Republicans are in charge.

Meanwhile, the House is likely to vote this week on legislation to restrict joint employer liability. The Rules Committee this evening will set the stage by passing a rule that limits (or eliminates) proposed amendments. Rep. Bradley Byrne’s (R-Ala.) bill would generally require a business in a staffing, contract, franchise or other affiliated relationship with another business to exercise direct control over the other business’s workers in order to be considered their joint employer for labor and wage and hour liability purposes.

We expect just about all Republicans – and at least a few Dems – to vote in favor of the measure. The picture gets quite a bit cloudier if and when the measure moves to the Senate. The healthcare debate, Russia investigations, nominee confirmations and a looming showdown on tax have left little room for movement on the labor policy front. That’s not to mention that the Senate HELP Committee is without a labor policy staff chief after Kyle Fortson was confirmed last week for a spot on the National Mediation Board.

BP: If you have any thoughts on how the Labor Department should set priorities for the next four years, now is your rare chance to speak up. Seriously, DOL needs help.

The agency is slated to open up a 30-day public comment period tomorrow on the draft strategic plan released last week for fiscal years 2018-2022. 

The draft caught my attention more for what it did not include than for what it did – no mention of how DOL plans to restructure in accordance with OMB Director Mick Mulvaney’s directive that agencies eliminate waste and eventually shrink their workforces. Also, the individual agency goals are largely apolitical. That’s probably because they’ve been mostly run by career officials who are waiting for policy directions from Senate-confirmed officials or, in the case of OFCCP, a politically appointed director. 

All it takes is a quick comparison of Labor Secretary Alex Acosta’s agenda with his predecessor’s meatier plans from four years ago to understand that DOL is still playing it safe. We’re not likely to get more insight on the department’s policy positions until more bodies arrive. For instance, the draft doesn’t include any mention of immigration policy, independent contractor misclassification, or efforts to compile research on contingent workers.    

Perhaps all the blank slots in Acosta’s draft will allow for more influence from the public to suggest ideas on how to fill them in. 

CO: We’re punching out. Daily Labor Report subscribers can check in during the week for updates. There are several stories to keep an eye on, but here are a few. What happens when your spouse’s job is to lobby the government office you’ve just been tapped to run? Jacklyn Wille has the scoop on a tricky ethical conundrum for Preston Rutledge, who was recently appointed to head the Employee Benefits Security Administration. We also recently heard about two new faces at EBSA: Jeanne Wilson (Deputy Assistant Secretary) and Mark Dundee (Senior Policy Adviser).

OFCCP guru Jay-Anne Casuga tells us that the Labor Department’s government watchdog is being forced for the first time to pull back the curtain and provide some details on how it analyzes contractors’ pay data. Plus, we’ll be keeping close tabs on the Supreme Court dockets when Hill v. SEIU – the case that challenges the constitutionality of public sector union exclusive representation – is slated to be distributed for conference Nov. 9.

Headed to the ABA Labor and Employment Law Conference this week? We’ll be there with some of our colleagues. Come say hi, share some good rumors or maybe even join us for happy hour. All of that White House talk about reporters drinking beer is making us mighty thirsty.

See you back here next Monday morning.

Bloomberg Law® helps labor and employment law practitioners provide rapid, accurate, and complete advice to clients by bringing together trusted, market-leading Bloomberg BNA content like Daily Labor Report® and treatises like Covenants Not to Compete: A State-by-State Survey and The Developing Labor Law, with a fully integrated, innovative legal research platform.  Click here to request a free trial.