PUNCHING IN: Labor Department Roster Moves, More NLRB Openings

PUNCHING IN

Monday morning musings for workplace watchers 

By Chris Opfer and Ben Penn

Life After Fair Share Fees | Labor Dept. Help Wanted | More Miscimarra?

Chris Opfer: The National Right to Work Legal Defense Foundation is expected to soon ask the Supreme Court to reconsider whether public sector unions can charge fair share fees to nonmember workers in a bargaining unit. Labor unions dodged a bullet last year when a 4-4 decision from SCOTUS left in place a Ninth Circuit ruling allowing a California teacher's union to charge the fees. Now that Neil Gorsuch has joined the bench, many labor advocates are expecting the worst. They’re also starting to think about what to do next.

If the justices eventually decide that public sector unions can’t charge nonmembers fees for representation expenses, labor advocates in the Golden State are thinking about three separate legislative proposals to keep their foot in the door, according to California lawyer and Teamsters lobbyist Barry Broad

The first is a bill that would force public employers to let unions have orientation sessions with new employees on the worksite and during work hours. “It would allow unions to have some access and to make the case as to why workers should join,” Broad told me.

The other two ideas are a lot more ambitious. The Teamsters would like to see a state law forcing public employers to foot some of the bill for their workers’ union representation fees. “The dues would be voluntary and very, very low,” Board said. “But then, as part of the collective bargaining process, the public employer pays for costs associated with the bargaining and [provides] the money to administer the contract.”

“Because a public employer is not a person, it doesn’t have a First Amendment right to object to being charged, he added.”

Finally, Broad said there’s also been some talk of trying to tweak the duty of fair representation. That duty requires unions to work on behalf of all workers in a bargaining unit, regardless of whether they pay dues. Some folks would like to see that changed to allow nonmembers in grievances to choose whether to have union representation (for a fee) or hire a private attorney.

Thoughts on those thoughts? Got an afternoon barbecue planned that we should know about? Contact us at bpenn@bna.com and copfer@bna.com, or on Twitter: @BenjaminPenn and @ChrisOpfer.

Ben Penn: Now for your latest edition of what I’m going to call, Punching In monitors Labor Department personnel so you don’t have to. Here’s who is entering the Perkins Building as a Trump administration political, and a few people who may get added to the list:

• Alexander Acosta, no explanation required.
• SURPRISE: Curtis Ellis, yes, that Curtis Ellis. The one responsible for that tweet about Mitch McConnell, and who was on that early flight from the G-20 summit. Sources familiar with the process tell me Ellis is still showing up to work in his temporary beachhead role, as everyone around him waits to see  if he’s appointed to head the Bureau of International Labor Affairs.
• Pssst: Martha Newton, the George W. Bush administration ILAB official, appears to have the inside track to run the bureau, leaving Ellis’ future on seemingly shaky ground, at least unless his pal Steve Bannon chimes in.
• NEW: Janelle Gardner, the former House workforce committee staffer and DOL beachhead team member has been called up as a full-fledged Schedule C political. She’s now DOL’s director of scheduling, spokeswoman Jennifer Hazelton tells me. Speaking of which …
• Jennifer Hazelton, a more recent beachhead arrival who was a communications director on the Trump campaign. Don’t be surprised to see her become Acosta’s assistant secretary for public affairs. 
• Nicholas Geale, acting solicitor. However, I have it on good authority that Geale, a Bush DOL veteran, wants to run the DOL legal shop on a permanent basis. He’s just waiting for approval from the White House, and maybe from Acosta, too. 
• Paul Ray, the recent Sidley Austin associate, remains the secretary’s counselor. 
• Wayne Palmer, newly minted chief of staff. Palmer, the former pharmaceutical lobbyist and then-Sen. Rick Santorum chief of staff, knows his way around the Capitol. Palmer’s been holding down the fort at DOL since January, where he was first assisting in the handoff to Trump’s first labor secretary pick Andy Puzder.
• Patrick Pizzella, as we’ve told you for months, the acting FLRA chairman is believed to want a return trip to DOL as deputy labor secretary. Some folks around town expect him to get the DOL’s #2 overall job. But in this White House, it’s tough to make assumptions. 

Another name that keeps coming up is Eric Dreiband, whose resume would appear to make him an obvious choice for solicitor or some other Senate-confirmed job. But the ex-EEOC general counsel and Trump DOL transition official may now be out of the picture, a source says. Stay tuned. 

Who am I missing? Have I been led astray? You know how to contact me.

CO: We’re expecting the White House to officially announce soon that lawyers Bill Emanuel and Marvin Kaplan have been tapped for the two Republican openings on the National Labor Relations Board. Folks on the management side are already saying those moves are long overdue. They want the board to reach a GOP majority sooner rather than later so it can reconsider a wide range of decisions issued during the Obama administration. Joint employer liability, collective bargaining on college campuses, “micro-units,” and employer handbooks are just some of the issues likely to get another look.

The labor and employment bar is also keeping an eye on another pair of openings at the NLRB. General Counsel Richard Griffin’s (D) term ends on Halloween (readers can insert their own “trick or treat” jokes here) and Chairman Phil Miscimarra’s board seat goes up for grabs in December. That is, of course, unless Miscimarra (R) signals he wants to stay on for another two years.

There are plenty of reasons why Miscimarra may want to linger, including the opportunity to see some of his Obama era dissenting opinions resurrected. On the other hand, the feds are getting him at a fraction of the price a former board member can fetch on the open market. Anyone want to wager which way he’ll go? 

BP: Tomorrow, I’ll be taking a dive into the world of Secretary Acosta’s interviews with prospective DOL attorneys and whether the toxic D.C. environment may be obstructing the process. 

But in addition to all the focus on political personnel, we can’t forget that the senior career attorneys are responsible for executing the new policies and crafting new regulations, including rules to undo the rules they worked on when Tom Perez and Patricia Smith were in charge. And all 10 nonpolitical associate solicitors working for Geale are the same Obama administration holdovers responsible for much of the robust rulemaking agenda that Acosta is now about to review. 

“It’s disheartening to work five years on a rule and then have to turn around and write a rule that is withdrawing the rule you just wrote,” said Chris Wilkinson, an associate solicitor for labor-management and civil rights at DOL through 2015. Had Chris not left DOL for private practice, he would have been ordered by Acosta/Geale to rescind the persuader regulation. A draft copy of this rescission NPRM now sits at the White House for final approval. 

Wilkinson thinks having a buffer period has helped his former colleagues adjust to the new regime. “Had there been a solicitor of labor there on the first day of the administration who was clearly pushing to drive change through rulemaking and policy, then I think the career people would’ve been disheartened. But now that there’s been some time and there’s a sense that you have a very well-respected secretary, I think folks will get the job done,” he told me.  

CO: Bloomberg Law’s Jon Steingart has been covering some of the kerfuffle surrounding Uber and Lyft’s decision to pull out of Austin, Texas, in protest of background check requirements for drivers. Today, the ride share operators are circling the wagons and returning to the capital city. That’s because Gov. Greg Abbott (R) is fixin’ to sign a law banning Austin and other cities in the state from imposing their own background check requirements.

That makes me wonder whether an emboldened Uber/Lyft combo might try the same move in Seattle, where a city ordinance that would allow drivers to unionize is on hold pending a legal challenge. 

"We continue to believe that the ordinance is unfair, undemocratic and a threat to driver flexibility,” Lyft spokesman Adrian Durbin told me via email last week. “Lyft is committed to remaining in Seattle for the long term, but the truth is that many of the issues the City has mandated must be negotiated with the Teamsters could fundamentally change how ridesharing operates.”

That sounds like some sort of veiled threat. So I asked Durbin whether that means the company might make like the SuperSonics and skip town if the Seattle ordinance is upheld.

“No, it doesn't mean that,” Durbin said. 

BP: We just realized we still have one more day of this long weekend, so we’re punching out. Daily Labor Report subscribers can check in with us during the week for updates. Chris is looking at why it’s so hard in some states for jobless workers to get unemployment insurance. Patrick Dorrian has the latest on an interesting disability discrimination case involving a transgender Cabela’s worker. Martin Berman-Gorvine will tell us why some overweight workers are blaming their bosses.

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.