Punching In


Labor Secretary Chatter, Who Needs the NLRB?

Monday morning musings for workplace watchers

By Chris Opfer and Ben Penn

DOL Fresh

Talking Labor Secretary | Who Needs the NLRB? | Overtime Update 

Chris Opfer: Pro football coach Bill “Big Tuna” Parcells once told reporters that putting a team together is a lot like choosing the ingredients for a meal. “They want you to cook the dinner; at least they ought to let you shop for some of the groceries,” Parcells said. President-elect Donald Trump is working his way through a shopping list of Cabinet officials, and could be nearing a labor secretary selection. Now’s probably a good time to take a look at some of the people believed to be in the running.

Ben Penn: Thanks for teeing this one up for me, Chris – if Trump is in the mood for fast food (which indeed he is), then the man credited with rescuing the Hardee’s burger chain, Andy Puzder, will get the gig.

I must confess that when Puzder, the CEO of the restaurant conglomerate that operates Hardee’s and Carl’s Jr., first circulated as a potential labor chief, we were skeptical that the rumor might originate from the Puzder camp. Well, looks like we sold short on the author, blogger, ex-trial lawyer and frequent public speaker. It’s reported that Puzder’s name is rising to the top of the transition team’s labor secretary short list. And as I wrote last week, that could pose ethical conflicts if a DOL enforcement agency investigates one of his stores.

Puzder isn’t the only name in the mix. Here’s more on the leading contender and a few others:

  • Puzder: He hasn’t been given the keys to DOL, but Puzder is already catching some negative ink for having opposed worker-friendly government regulations and minimum wage hikes, while favoring automation that would reduce jobs. That track record may not mesh with what will be a principal mission for a Trump labor secretary – selling the public on the president’s populist promise to restore well-paying American jobs. If Puzder gets tapped, expect the administration’s narrative to focus on the jobs he saved by salvaging Hardee’s fortunes. Bottom line: Trump’s team seems to like Puzder’s business background and labor law knowledge. Preemptive criticisms from worker advocates don’t appear to matter.
  • Rep. Lou Barletta (R-Pa.): The relatively obscure third-term congressman was one of Trump’s earliest Capitol Hill endorsers who never wavered in his support. Never. He’s on the House Education and the Workforce Committee, but isn’t a labor policy insider. So why is he on this list? Because he told us he is. After meeting with Trump last week, Barletta slipped to reporters that they discussed the labor secretary position. Bottom line: Trump wants to reward Barletta for his loyalty and the list of remaining Cabinet slots is narrowing – reason enough to take his candidacy for labor secretary seriously.
  • Peter Kirsanow: All you need to know about the Cleveland management attorney, former Republican member of both the NLRB and Civil Rights Commission and immigration hardliner is right here in his interview with Mr. Opfer. A source who recently communicated with the Trump transition told me Kirsanow remains under consideration for labor secretary. Bottom line: He would draw fierce criticism from Democrats (not that they have the votes to stop him), but Kirsanow could get the nod because of his familiarity with labor law and the diversity he’d bring to the Cabinet as an African American.
  • Vicki Lipnic: The first name to circulate as a labor secretary candidate is listed last for a reason – she’s the only one who hasn’t met with Trump or the transition team. Lipnic, the sitting Equal Employment Opportunity Council commissioner, has the labor resume for the job if Trump wanted to go the policy specialist route. Despite her conservative bent, Lipnic is the prospective nominee that unions and progressives would tolerate the most. Bottom line: Circumstances change, so we’re not counting her completely out yet, but the odds don’t look good.

CO: The Trump team also has a couple of slots to fill on the National Labor Relations Board. In the meantime, Republicans in Congress are salivating at the chance to revamp the board, given GOP control of both the White House and the Capitol. “The NLRB is going to look a lot different” Rep. Phil Roe (R-Tenn.) told Bloomberg Law reporter Tyrone Richardson and me earlier this month.One of Roe’s colleagues on the Education and the Workforce Committee might take it a step further. Rep. Bradley Byrne (R-Ala.) isn’t so sure that the board should even continue to exist

“I would say we ought to consider whether we need a board at all,” Byrne told me outside the House floor last week. “Let’s put everything into statutory law and continue to have the NLRB function as regional units for the enforcement of the law. If they need to go to an administrative law judge, they could still go there and they could go ahead and go through the court process from there. But I wonder why, with settled law, we need to have a National Labor Relations Board going forward at all.”

Byrne is a noted Duke Basketball fan. In our neck of the woods, that’s grounds for a high dose of skepticism. But he’s also a former labor lawyer and someone that incoming committee chair Virginia Foxx (R-N.C.) has said she intends to rely on heavily for insight into workforce policy matters. Since Trump has made clear he wants to slash government regulations, might he start by trimming at the NLRB? 

BP: Why mere skepticism over a Dukie? In my book, that’s grounds for disqualification. Sorry Mr. Byrne, the NLRB ain’t going anywhere.

Meanwhile, I’m off to neurotically refresh the overtime rule litigation docket a few more times. This could change by mid-morning, but here’s where the case stands:

As anticipated, the government filed a notice of appeal last week, along with a request to expedite the process, in the hopes that the Fifth Circuit will reverse a nationwide injunction that’s put the regulation’s status in serious peril. Perhaps we’ll see this week if the traditionally conservative New Orleans appeals court feels the same sense of urgency as the feds. 

But even the briefing schedule proposed by the DOJ would carry into the Trump administration, so yet again, we find ourselves waiting for the Donald to shed some light. Seems that even though he’s got lobbyists and Republicans in his ear telling him how disastrous the rule would be for business, the risk of blocking a middle-class raise has thrown him a political curveball. 

CO: One of the ways Republicans are trying to kill the overtime rule is by going home early. If at least one chamber of Congress finishes up for the year by Friday, GOP lawmakers can restart the clock on their Congressional Review Act challenge to the rule. First, they have to pass a continuing resolution to keep the government open for business into the next year. Most of the big-ticket labor policy riders that were chucked into House spending legislation earlier this year likely won’t be in the CR, but there could be a few items of interest.

Bloomberg Law’s Laura Francis told us there’s no word yet on whether lawmakers will use the funding measure to renew the EB-5 regional center program. The program lets immigrant entrepreneurs pool their investments to qualify for green cards. Judiciary Committee Chairman Chuck Grassley (R-Iowa) and others have said the program should be scrapped altogether if it isn’t overhauled to combat abuse. Francis tells us, however, that most folks watching the program think it isn’t going away any time soon.

We also don’t know whether the CR will include a provision to let low-skilled seasonal workers return to the U.S. without counting against the cap on H-2B visas. Tourism, entertainment, landscaping, seafood and other businesses want to be able to staff up with returning workers. Critics, like Trump attorney general pick Jeff Sessions (R-Ala.), are concerned that the visas are used to drive down wages and job opportunities for American workers.

Then there’s the ongoing battle over truck driver work-hour limits. We’re hearing it’s likely the CR will continue the freeze on a Transportation Department rule that would limit truckers to 70 hours behind the wheel per week. Bloomberg Law’s Hassan Kanu pointed out that the debate over the wisdom of that rule--some say it forces drivers onto roads during the busier daylight hours--comes as DOT is running late on guidance for drug-testing drivers via their hair follicles.

BP: That about wraps things up for us, so we’ll punch out for now. Daily Labor Report subscribers can check in with us during the week. Bloomberg Law’s Jacklyn Wille will be following up on the Supreme Court’s decision to take up a trio of cases challenging hospital pension plans. Economics reporter Larry Swisher is taking a look at how business economists are reacting to Trump’s policy proposals. 

See you back here next Monday morning.

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