Punching In: The Trump Labor Board

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By Chris Opfer and Ben Penn

Monday morning musings for workplace watchers

Bringing in John Ring | Take a Jaunt to the Labor Department | View from the Tip Pool

Chris Opfer: Republicans could take a big step toward regaining control of the National Labor Relations Board on Wednesday, when John Ring goes up to the Hill for a confirmation hearing on his board seat nomination. Will Senate Democrats ask the management attorney to be their Valentine? Probably not, given the side eye that most Trump labor nominees have been met with from the left end of the HELP Committee dais.

Elizabeth Warren and Patty Murray have been hammering member Bill Emanuel (R) about his past life as a company man and his involvement in a case that his previous employer also had a stake in. Now the NLRB’s inspector general is also reportedly taking a look. It’s safe to assume that Ring will field some questions about how he plans to untangle any conflicts of interest stemming from his work at Morgan Lewis. But his private work on multiemployer benefits and bargaining doesn’t appear to have been as closely intertwined with board matters as some of his future colleagues’ pre-board activities.

Republicans took the wheel at the board for a brief but action-packed stint just before Chairman Phil Miscimarra (R) left in December. If Ring is eventually confirmed, however, he’ll usher in what most folks will consider the first Trump board. Lots of Obama era decisions are likely on the chopping block. Insiders tell me the Purple Communications ruling allowing workers to use company email for union purposes could be one of the first to go.

Changes are also coming to the NLRB from the general counsel’s office. More on that in a minute.

Ben Penn: The White House budget proposal for fiscal 2019 may already be out by the time you’re reading this. Head here for full coverage of Trump’s spending requests—and agency reform plans—for the National Labor Relations Board, Labor Department, and other employment agencies.

If you’re still with us even after that alluring budget tease, here’s a gentle reminder that the more tangible appropriations process was set in motion last week, independently of the Office of Management and Budget’s aspirational release today. The two-year deal struck Feb. 9 gives congressional purse-string holders a March 23 deadline to hash out funding levels for individual agencies and programs. In other words, today’s White House news is somewhat of a sideshow. The real action now begins on Capitol Hill.

Anyway, to those who’ve been a bit too distracted with the tip pooling commotion of late—fine, maybe it’s only me—let’s get caught up on some other critical happenings around the Frances Perkins Building that don’t involve scrubbed data:

  • Some of you might have missed last week that Sen. Marco Rubio wrote to fellow Miami-native Labor Secretary Alex Acosta, to request that he speed up the department’s overhaul of the Obama wage-hour enforcement agenda. Perhaps Rubio should’ve cc’d his Majority Leader Mitch McConnell. To take up Rubio’s advice in earnest, Acosta would need Mitch to schedule a vote on the Trump nominee for Wage and Hour Division administrator, Cheryl Stanton. She was first tapped for the job more than five months ago.
  • Speaking of which, appropriations negotiations and immigration are now occupying enough space on the Senate calendar that White House DOL picks Stanton, Pat Pizzella, William Beach, and Scott Mugno might be waiting even longer than anticipated for a confirmation vote. At this point, if the Senate fast-tracks recent NLRB nominee John Ring ahead of the months-old DOL selections, it shouldn’t come as a surprise. The NLRB-minded McConnell knows how important reclaiming GOP control of the board is.
  • In non-Senate-confirmed personnel news, two days after we called attention to Acosta’s Democratic holdover atop the Administrative Review Board, Paul Igasaki—the ARB’s chair—ended his eight-year reign at DOL. Before blaming Punching In for the exit, listen to the DOL spokesman who explained Igasaki’s term simply expired naturally, without a reappointment. No replacement yet, the spokesman said.
  • Elsewhere in DOL departures, the agency’s senior ethics counsel Robert Shapiro retired this month, ending a more than 40-year run at the department. Only fitting that his final year featured possibly his toughest case yet: Andy Puzder’s potential conflicts of interest. Agency formers from both sides of the aisle tell me Shapiro is leaving behind some huge shoes to fill. Happy retirement, Bob.
  • Finally, the DOL staff union trusteeship drama continues. After AFGE Local 12 officers were deposed in October over accusations of misusing membership dues, three different acting presidents have been installed and $1,500 went missing from the local’s office, the trustee and ex-VP tell me. The latest person tapped to temporarily head the union representing 3,000 department employees in Washington is Jeff Wheeler, who is also an international relations officer at DOL. The ousted leaders are still litigating the terms of their removal.

CO: Given the speed at which Trump nominees have been moving through the Senate, the Nats may have finished spring training by the time Ring lands at NLRB headquarters over by the ball park. General Counsel Peter Robb will also likely have started the wheels churning on changes in the way the agency investigates and processes unfair labor practice complaints.

Robb told a group of lawyers in New York last week that he plans to update the NLRB’s case processing system before he turns to tinkering with the personnel at field and regional offices. Both moves are drawing some concern from various corners of the NLRB world, including the union that represents NLRB staffers.

The case processing options floated in an internal memo include moves to shorten investigations, emphasize settlements, drop meritless complaints, and impose strict deadlines on workers, unions, and businesses involved in labor beefs. Robb told the New York group that the “large majority” of the 59 suggestions in the memo “came from field attorneys and field examiners.” I’ve heard grumbling that not everyone feels like they had a chance to weigh in, but they may still get an opportunity. Sources tell Hassan Kanu the deadline for folks inside the NLRB to comment on the proposals has been moved back a couple weeks.

Robb said the proposals will go through at least a few more rounds of review before a firm plan takes hold. Look for more news from us this week.

BP: The DOL is still under attack from the left for not producing data that showed its tip pool proposal would lead restaurant managers to hold onto up to billions of dollars in worker gratuities. And the coalition of Democrats engaged on what was previously a below-the-radar, labor reg appears ready to expand.

House Democrats are keen on making sure this issue doesn’t fizzle in the second full week after the news broke about the buried analysis. Thursday, the minority office of the House Education and the Workforce Committee is inviting its entire caucus to a forum titled, “Exploring the Policy and Process Behind the Labor Department’s Proposal to Allow Employers to Pocket Their Employees’ Tips.” A panel of experts from the National Employment Law Project, Economic Policy Institute, and Public Citizen will be there to answer members’ questions.

Regardless of how much DOL leadership might think the Dems are sensationalizing this matter for political gain heading into the midterms, Secretary Acosta must realize that the messaging doesn’t play favorably for his side here. That’s one reason why I’m hearing chatter that DOL might try to hush the critics by re-proposing the rule with the quantitative data included, or at least just releasing the data on tips transferred to employers on its own.

Former Democratic White House Office of Information and Regulatory Affairs Administrator Cass Sunstein suggested this option, and I’ve heard from Republicans who would endorse this plan as well. A re-proposal would open the figures up for public comment, allow the WHD to review that input when quantifying a cost-benefit analysis in the final rule, and fend off the lack of transparency accusations, while maybe even foreclosing a lawsuit in the process.

Now whether that option would fly with a Justice Department eager to use this rule to moot a pending Supreme Court petition is another story.

CO: 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@bloomberglaw.comand bpenn@bloomberglaw.com or on Twitter: @ChrisOpfer and @BenjaminPenn.

This is fashion week. That means I’ll be throwing on a pair of jean shorts and a sleeveless mock turtleneck and hitting the first runway that will have me. More importantly, Bloomberg Law’s Porter Wells is looking at what real fashion models’ independent contractor status means for them. Speaking of contractors, airports are a brewing battleground for union fights, at least for the time being. I’ll have more on a legal debate that could make it much tougher for bag handlers, plane cleaners, and other airline contractor employees to organize.

Finally, Bloomberg Law immigration guru Laura Francis tells us the Supreme Court will decide Friday whether to take up a case challenging the Trump administration’s decision to end deferred action protections for undocumented immigrants who came to the country at a young age. The White House says it will play ball with Democrats by extending similar protections to some 1.8 million people. But the president wants cash for this border wall as part of the deal.

See you back here next Monday.

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