PUNCHING IN: Talking Trade and What's Next at Labor Department, Board


Monday morning musings for workplace watchers

By Chris Opfer and Ben Penn


New OFCCP Chief | NLRB: And Then There Were Four | More on Roy 

Ben Penn: Before breaking down the week ahead, it’s time to announce a major Labor Department personnel move. Effective Sunday, Dec. 10, Ondray Harris is the director of the Office of Federal Contract Compliance Programs, a DOL spokesman tells Punching In. Harris, who first joined the DOL political team as a senior adviser in June, had a Senate-confirmed post in George W. Bush’s Justice Department. 

He arrives at a pivotal juncture for the office charged with auditing government contractors for workplace nondiscrimination and affirmative action compliance. During the OFCCP’s past 13 months without a politically-appointed director, the agency has been pressured by the business community to overhaul its enforcement procedures. The department has already offered OFCCP employees two rounds of buyouts in the face of budget cuts.

Our resident OFCCP guru Jay-Anne Casuga will have more today on Harris’s appointment for Daily Labor Report subscribers. 

One more new political hire for the Trump DOL team: David Thomasis now chief of staff of the Office of Congressional and Intergovernmental Affairs. No stranger to Capitol Hill, Thomas has held the CoS title for GOP lawmakers Rep. Hal Rogers (Ky.) and former Rep. Tom Davis (Va.).

Chris Opfer: That was fast. Less than three months after Bill Emanuel was sworn in to give the NLRB its first Republican majority in nearly a decade, the board is set to revert to a 2-2 split when Chairman Phil Miscimarra’s (R) term ends Saturday. We’ve reported that Morgan Lewis lawyer John Ring is being vetted to replace Miscimarra, but the appointment and confirmation process is likely to take months.

The four-member board is primed to try to churn out a ton of decisions this week. That’s because any case that Miscimarra was involved in that isn’t decided before he leaves has to be retried before a new panel. 

“Any time a board member leaves – quite apart from any political shift in power at the board – an effort is made to get out as many cases as possible that the departing member was on,” former board member Marshall Babson (R) told me. “Every case that Phil was on is a case that they’re going to try to get out.”

The wheels of justice won’t skid to a halt come Saturday, but don’t expect any drastic changes until a fifth member joins. Tradition dictates that changes in board precedent require at least three members to support the move, which is unlikely to happen until there are three members from the same party.

“For those who have been waiting for significant changes in decisions that they view as a problem from the previous administration, that’s going to be on hold,” Babson said.

BP: The Trump administration’s rapport with the labor movement will be put to the test on Friday.

Secretary Acosta is scheduled to host a who’s who of union leaders at his office for a meeting of the Labor Advisory Committee for Trade Negotiations and Trade Policy. The committee, which is authorized by federal law to submit reports on trade deals, consists of the AFL-CIO’s Richard Trumka, SEIU’s Mary Kay Henry, the Teamsters’ James Hoffa, and a few dozen other labor presidents. 

Recall that at a November conference for labor lawyers, Acosta cited trade as an area of agreement between this White House and unions that can help offset conflicts on other issues. 

But the apprenticeships-minded labor secretary hasn’t exactly been preaching the values of ripping apart trade deals of late, even though that’s been Donald Trump’s recurring message to win over some union households. So as we enter Friday’s meeting, with an appearance also scheduled by U.S. Trade Representative Robert Lighthizer, what is the latest union-side sentiment? 

“There has been very little engagement with Acosta or ILAB to this point,” a union lobbyist tells me, referring to the DOL’s Bureau of International Labor Affairs. “Basically all of the increased engagement on trade-related issues has come through USTR. The general sense I get is that ILAB is not a priority for Acosta, so it is hard to know how to square that with Lighthizer's repeated claims that they are going to bring up wages and bargaining rights with our trade partners.”

To be fair, the secretary didn’t start the job with a background studying the labor components of international trade pacts, as far as I know. And during his first year on the job he’s been quite involved in some of the knotty legal issues that are more aligned with his pedigree as a government lawyer. 

But unions are approaching the DOL at this meeting with a healthy dose of skepticism after the White House proposed slashing ILAB’s budget by 75 percent last spring. They also sweated out the near appointment of Curtis Ellis to head the agency.

Stakeholders from labor and business view the bureau’s mission as critical – from a humanitarian standpoint of eradicating foreign worker abuse and also to place U.S. employees on an even playing field.

If Acosta is committed to leveraging trade to forge a better relationship with organized labor, Friday could be his chance to prove it.

[Update: the meeting has been postponed, as of Monday morning].

CO: Voters in Alabama head to the polls tomorrow to choose the state’s next junior Senator. What was originally considered a safe Republican seat has veered into toss -up territory thanks to allegations that Republican contender Roy Moore assaulted or made advances to women as young as 14 years old when he was in his 30s.

Trump’s endorsement of Moore and the Republican National’s Committee’s decision to continue supporting the beleaguered candidate have raised all kinds of talk about a brewing battle for the soul of the GOP. There’s also the question of whether the Senate would even seat Moore if he beats Democratic challenger Doug Jones

The race has some significance from a labor and employment perspective. Recent debates over Obamacare and tax reform make clear that every vote matters in the Senate. Whether it’s a bill to restrict joint employment liability for affiliated businesses or a measure to shield employers from state and local leave requirements, Republicans already need to get at least eight Democrats to cross the aisle to move legislation to Trump’s desk. If Jones wins the Alabama race, that magic number becomes nine.

BP: When history is written on the upcoming Supreme Court case Janus v. AFSCME, top billing will rightfully go to the consequences for public sector unions and organized labor in general. But a footnote belongs to the Trump Justice and Labor departments throwing their weight behind the National Right to Work Foundation’s side.  

There’s a worthwhile discussion to be had on whether the government’s amicus brief affects the DOJ solicitor general’s reputation before the supremes as a purportedly nonpartisan interpreter of the law. Remember, the Janus brief comes after Obama-appointed attorneys reached the opposite legal conclusion on government union fees two years ago.

But let’s focus instead on a bit of Labor Department palace intrigue tied to this high-stakes case.

I’m told that senior career DOL attorneys who would normally be at the center of drafting the brief were either iced out of the Janus process by political leadership or had their legal advice ignored.

Many of the civil servants inside the DOL solicitor’s office are holdovers from the Obama administration, when the Labor Department worked with Justice to craft pro-union briefs in two related cases – Harris v. Quinn and Friedrichs v. California Teachers Association.

The optics here are that Acosta and his acting solicitor Nick Geale felt they couldn’t trust their career team with a political hot potato assignment from the SG – to argue that public union fees are unconstitutional. For fans of Pulp Fiction, enter Acosta’s version of The Wolf: Arthur F. Rosenfeld, who is listed on the brief as one of the authors.  

Rosenfeld, who was the general counsel of the National Labor Relations Board from 2001-2006, is currently a “senior counselor” at the department. Before his credit on this brief, Rosenfeld’s return to government service hadn’t been announced, but a DOL spokesman now says he’s been on board for months. 

The job of DOL senior counselor may read as a demotion for Rosenfeld, considering his decades of high-ranking labor law roles.  But there’s recent precedent for this type of move. Labor Secretary Tom Perez also brought in a like-minded ex-labor board GC – Lafe Solomon – for a special assignment in Obama’s second term: to implement the president’s ill-fated Fair Pay Safe Workplaces executive order. 

Don’t be surprised to see Rosenfeld take on a bolstered portfolio and new DOL appointment now that his work in Janus is done.

As for the career lawyers said to have been excused from the Janus process or who were offended by how this matter and others were handled, DOL watchers might want to keep an eye out for departures.

CO: When we talk about the future of work, a lot of the conversation focuses on the gig jobs that many people are already doing. Worker classification may very well be the most important issue in the labor and employment space now, but there’s also the pesky question of what happens to all of those Uber drivers – not to mention bank tellers, factory workers, and (yes) lawyers – whose jobs are eliminated by automation and artificial intelligence. A group of business advocates wants the Labor Department to make that issue a focal point.

“There are tactical issues about classification and what we are going to do about the sharing economy, but what I’m talking about is a fundamental change in the way we think about the future in a highly strategic manner,” Littler Mendelson attorney Michael Lotito told me. “It seems to me that the logical champion is the Secretary of Labor.”

Lotito is among a group of Littler Mendelson lawyers and lobbyists from Prime Policy Group who last week urged DOL to update its strategic enforcement plan to include efforts to prepare workers for changes likely to be brought on by advances in technology. The group noted that China is already working to reshape its economy and labor force for the next tech revolution. It said the department should be working with other agencies, state and local governments, and businesses to come up with a plan to train workers in automated systems and prepare for technology-related layoffs.

“Are we really being constructive when we’re telling people the old coal plant is going to be reopened?” Lotito said. “Aren’t we better served by telling the displaced coal miner here’s the path to the future?”

BP: We’re punching out. Daily Labor Report subscribers can check in during the week for updates. In the meantime, feel free to reach out to us: copfer@bna.com and bpenn@bna.com, or on Twitter: @ChrisOpfer and @BenjaminPenn. Can a business fight pay discrimination claims by saying that it  used workers’ salary histories to set wage rates? The Ninth Circuit is taking another look at that question and Bloomberg Law’s Jon Steingart will be reporting. Jay-Anne Casuga is looking at what’s on the OFCCP wish list for contractors and their workers. Mara Lee, Bloomberg Law’s newest labor reporter, is following as some 36,000 Disney workers in Florida decide whether to accept a new collective bargaining agreement.

See you back here next Monday morning.

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