Punching In: Trump Union Watchdog Has New Honcho

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By Chris Opfer, Ben Penn and Genevieve Douglas

Monday morning musings for workplace watchers

Stand By for SCOTUS Pick | Senate Looks at Paid leave | Gone Gasket?

Chris Opfer: We’re once again on Supreme Court watch, this time awaiting President Trump’s announcement of his pick to fill Justice Anthony Kennedy’s seat on the bench. Whether it’s Amy Coney Barrett, Brett Kavanaugh, Raymond Kethledge, or someone from the cast of “Hot Bench,” we’ll have the news for subscribers here and in your inbox.

There’s a lot at stake. Questions are already swirling about what the change will mean for the abortion and death penalty debates. And the court may very well finally decide to decide whether a federal ban on sex discrimination in the workplace extends to sexual orientation bias.

Bloomberg Law’s Jay-Anne Casuga and Porter Wells took a look at some of the other labor and employment cases the court will take up in the fall, including questions about age discrimination and class arbitration.

Ben Penn: The wait is over for leadership at the Labor Department’s union-auditing office. After more than six months of speculation, Arthur Rosenfeld begins today as director of the Office of Labor-Management Standards, a DOL official tells me.

Read the full story here.

Rosenfeld, a longtime GOP labor attorney who was George W. Bush’s National Labor Relations Board general counsel, has been quietly working as a counselor to the DOL solicitor for nearly a year. Some expected his promotion to come much sooner, and rumor had it that the National Right to Work Foundation was opposing his candidacy for the spot, perhaps hoping for a more fervent candidate.

The NRTW and other anti-union conservative groups consider the office critical for beaming sunlight on labor movement activity. Especially in their sights are worker centers, which aren’t currently required to submit forms to OLMS because they aren’t considered to be labor organizations engaged in collective bargaining.

Rosenfeld’s name first emerged in December. By March, DOL watchers, including yours truly, started to wonder if the administration was going in a different direction. So what caused the delay for a job that doesn’t require Senate approval? The DOL official I spoke with wouldn’t say. It’s worth noting that the White House personnel office did play a role in vetting Rosenfeld.

But Rosenfeld is here now, and we’ll be keeping a close eye on what it means for enforcement of labor organization disclosure laws. For instance, with such a limited budget, can he significantly bolster the number of investigations into union finances or into whether worker centers are actually labor organizations? Congress might have to find more resources for OLMS for that to happen.

On other fronts, it’s a busy week ahead in labor and employment. We’ve asked Bloomberg Law’s paid leave guru Genna Douglas to punch in with some insight on an upcoming hearing on Capitol Hill.

Genevieve Douglas: It has seemed mostly quiet at the White House in terms of federal paid leave policy. But apparently things have been progressing behind the scenes. We may get some clues about how Congress plans to take up Ivanka Trump’s pet project on Wednesday when a Senate Finance subcommittee convenes a hearing on the issue.

Committee Chairman Bill Cassidy (R-La.) announced the hearing just before workers headed home the day before the Fourth of July fireworks. Cassidy noted that President Trump’s tax legislation expanded credits to encourage employers to offer workers 12 weeks of paid family leave, leaving the rest of the puzzle for Congress to address.

Meanwhile, Sen. Kirsten Gillibrand (D-N.Y.), longtime proponent of a national solution and author of a bill to create a national paid leave insurance bank, is scheduled to testify, as is Sen. Joni Ernst (R-Iowa). Ernst has been vocal on the issue from the other side of the aisle. Vicki Shabo with the National Partnership for Women & Families has also made the cut. Less obvious on the list of attendees is Andrew Biggs, an American Enterprise Institute resident scholar on Social Security reform, public and private sector compensation, and state and local government pensions.

In February, Ernst and Sens. Mike Lee (R-Utah) and Marco Rubio (R-Fla.) were considering legislation that would allow workers to redirect some of their Social Security contributions to pay for family leave. It’s likely that Biggs’ testimony will address the feasibility of this proposal. If a May blog post co-authored by Biggs is any indication, he’s going to say it’s “worth considering.”

As for the first daughter, Ivanka Trump hasn’t hitched her wagon to any particular policy solution. She seems to just want lawmakers to do something. Here’s what she said last week:

CO: An easier path for union decertification has been on the business community’s wish list for a long time. The right-to-work folks recently teed up two opportunities for the GOP-majority board to make it easier for workers who don’t want to join a union to challenge their employer’s voluntary recognition of one without an election.

The National Right to Work Legal Defense Foundation, still basking in its “fair share” public sector union fees win in Janus, is targeting the NLRB’s 2010 decision in Lamons Gasket Co. next.

A Democrat-majority board in that case said workers have to wait at least six months from the time an employer voluntarily recognizes a union until they try to decertify the union. The board, chaired by Wilma Liebman (D) at the time, said only 1.2 percent of such challenges were successful in the four years after a Bush board ruling that allowed workers to challenge a voluntary union recognition within 45 days of the recognition.

The foundation is representing a group of workers at a Hilton Hotel in Seattle who want to decertify a union recognized by the hotel owner in May. It also filed a similar decertification petition for a group of clerical workers in Wisconsin. Foundation lawyers argue that the businesses in both cases recognized the unions without properly gauging worker support. Voluntary recognition typically comes when a business acknowledges that the union has enough support to win an election. They also say the Lamons Gasket decision allows labor organizations to use card check campaigns and “other coercive organizing tactics” to force workers to publicly support unionization even if those employees would vote against union representation in a secret ballot election.

The NRTW has additionally argued that former labor board member Craig Becker (D) should have sat out that decision because he had previously signed a brief for the AFL-CIO opposing efforts to limit the “recognition bar” at issue in Lamons Gasket.

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.com and bpenn@bloomberglaw.com or on Twitter: @ChrisOpfer, @BenjaminPenn, and @Genna_Douglas

Still looking for more DOL news? Check out Ben’s story on the Wage and Hour Administration continuing the Obama-era practice of pushing for double damages in minimum wage and overtime investigations. I’ll be in D.C. this week, where I’m reporting on lingering questions within the Trump administration about who gets to make their case to the Supreme Court when agencies don’t agree on legal issues.

See you back here next Monday.

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