Punching In: Who is the NLRB's Mystery Candidate?


Monday morning musings for workplace watchers 

By Chris Opfer and Ben Penn


NLRB Mystery Member | Davis Bacon Proposal Cooked | Salary History Ban Hits Big Apple

Chris Opfer: National Labor Relations Board Chairman Phil Miscimarra (R) will get to enjoy less than four months of a Republican-majority board before his term ends in December. We’ve already reported that Morgan Lewis attorney John Ring and California agriculture lawyer Mike Stoker are waiting in the wings as potential replacements for Miscimarra. Now we’re hearing some talk of a third, dark horse candidate for the gig that no one seems to know very much about.

“I’ve heard that there is a third candidate, who no one that I would generally expect to be ‘in the know’ seems to know the name of,” one labor board insider told me recently. Two other people who tend to have the goods when it comes to labor news also told us there’s been talk of a mysterious third contender.

It’s like Tom Petty (RIP) said: “The waiting is the hardest part.” There are a couple of reasons why the uncertainty about a new hat in the ring is causing some anxiety for management-side types. For one thing, they have no way of knowing how the person feels about many of the big-ticket questions likely to wind up before the board. For another, the cloak and dagger routine could slow down the process of filling Miscimarra’s seat. Republicans and their allies have waited a decade for the GOP to take control of the board. They don’t want to waste any more time.

Think of this as an FBI most wanted poster. Do you know the mystery man or woman in the mix for the NLRB’s crucial fifth seat? Hit us up: copfer@bna.com and bpenn@bna.com, or on Twitter: @ChrisOpfer and @BenjaminPenn.

Ben Penn: While Chris chases a new mystery, I’m going to dust off an old one: remember that odd Trump remark about a Davis-Bacon Act announcement being two weeks away? Well that was six months ago, and we’ve yet to hear the administration update the rules on prevailing wage laws for construction workers on federally funded projects.

So I asked around about White House Davis-Bacon plans, and what I learned may not come as a surprise. But it still shines a fascinating light on the building trades wing of the labor movement and its influence over the Trump administration.

I’m told that earlier this year, James Sherk, who oversees labor and employment issues at the White House Domestic Policy Council, began work on a regulatory proposal that would have switched prevailing wage survey authority from the Wage and Hour Division to the Bureau of Labor Statistics. The proposal was outlined in a report Sherk wrote for the Heritage Foundation Jan. 21, just as he was leaving the conservative think tank to join the Trump administration. But the word is that Sherk was told to shut down the project, and that the White House and Secretary of Labor Alexander Acosta weren’t interested in angering the construction unions and their members who voted for Trump.

The problem for the unions is that the BLS methodology is believed to significantly reduce workers’ base pay on construction projects. This would be a nonstarter for North America’s Building Trades Unions and related labor groups that have been more supportive of the Trump agenda this year, but could turn members of the president’s blue-collar base against him if he moved to cut their pay. 

The development is further evidence that if we’re going to see any action on Davis-Bacon to align with the looming infrastructure legislative push, it will be from Congress, not the executive branch. And Mr. Sherk, if you want to tell us what you ARE working on of late, you know how to reach us. (The White House didn’t provide a comment on the Davis-Bacon proposal.)

CO: New York will be the latest locale to ban employers from asking job applicants about their salary histories, when a new law takes effect Oct. 31 (Happy Halloween?). The law -- and similar bans in Oregon, Delaware, Massachusetts, Philadelphia, and San Francisco -- is meant to prevent early episodes of pay discrimination from getting baked in over a worker’s career. 

“What we know is that when women and people of color are paid less, that cycle is perpetuated by them being asked ‘What are you making now?’ Dana Sussman, a deputy commissioner for the New York City Commission on Human Rights, recently told me. “This is simply something we know structurally exists and we are trying to break that cycle by asking a different type of question.”

Business groups have already sued to try to pump the breaks on the ban in Philly and could still do the same in New York. But I’ve heard from several corporate advocates who say the whole thing might not be such a big deal. All HR folks need to do now is ask job recruits a slightly different question than they may have been asking before: “What will it take for you to join us?”

BP: Last week was chock-full of wage-and-hour personnel news, with WHD administrator nominee Cheryl Stanton testifying on the Hill and the installation of Bryan Jarrett as deputy WHD chief

So if the cliché “personnel is policy” is true, what do these new bodies foretell for this critical agency charged with protecting workers’ paychecks. The perception within the management bar is that the Obama WHD strayed from historical precedent by becoming more aggressive than even previous Democratic administrations in how it investigated workplaces and debarred federal contractors. Newly hired WHD Senior Policy Adviser Keith Sonderling, Jarrett, and Stanton all bring management-side backgrounds in wage-hour law.

We don’t know what positions they’ll adopt inside the agency, but there are numerous WHD policies that are likely to get considered – either to withdraw practices instituted under Obama and his WHD chief David Weil, or to revise longstanding protocols that precede the prior administration. 

The policies on the chopping block include WHD relying on liquidated damages to settle cases for twice the amount of the back wages owed, and continuing to pursue debarment against government contractors, including after they have already made employees whole on back wages. Also, expect the new WHD political operation to take a fresh look at prevailing wage determination methods and field guidance on tip credits, among other areas in which management attorneys have been calling for revision. 

What will actually become top priorities for the administration to act on? We won’t know until after a WHD administrator shows up to work. But the arrival of Sonderling and Jarrett to hold down the fort surely means the groundwork is being laid for Stanton (presumably) to hit the ground running on day one.

We’re punching out. Daily Labor Report subscribers can check in during the week for updates. A few weeks back, we talked about how EEOC Commissioners Vicky Lipnic and Chai Feldblum wanted to work with the NLRB on harmonizing workplace harassment restrictions with jobsite speech protections. Well, Bloomberg Law’s Jacquie Lee has more news: “The NLRB and the EEOC are working together to develop joint guidance for employers,” an NLRB spokesman told Jacquie last week. Speaking of harassment on the job, Bloomberg Law’s Jay-Anne Casuga is looking at “micro-aggressions.” What are they? We don’t know either, but we look forward to finding out.

See you back here next Monday morning.

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