Trump Taps Ex-NLRB Member Acosta for Labor Secretary

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By Ben Penn and Chris Opfer

President Donald Trump announced former National Labor Relations Board member Alexander Acosta as his new labor secretary-designate Feb. 16, less than a day after his first choice withdrew.

Acosta is a “former clerk for Justice Samuel Alito. He has had a tremendous career ... and has been through Senate confirmation three times,” Trump said at a White House news conference. “I think he’ll be a tremendous secretary of labor,” he said.

Acosta (R) served on the board for eight months in 2003, before President George W. Bush appointed him as his assistant attorney general for civil rights. He was then a U.S. attorney for the Southern District of Florida before taking on his current role as law school dean at Florida International University.

“Alex is really more of an intellectual, who takes a scholarly approach to the law,” Obama-appointed NLRB Chair Wilma Liebman (D) told Bloomberg BNA. “He has a respect for the law and is interested in the law, and I think he’s interested in the lives of regular people.” Liebman served with Acosta on Bush’s board.

The White House moved swiftly on his appointment, as Trump huddled with Acosta the same day fast-food executive Andrew Puzder withdrew his name from consideration for the post. Acosta’s appointment is a clear signal of the Trump administration’s desire to avoid the same drawn-out controversy that ultimately prevented Puzder from even having a Senate hearing.

“Acosta is an extremely experienced government hand and plainly someone who can play multiple roles in an administration,” said Seth Harris, deputy labor secretary under President Barack Obama. “So there’s no question in my mind that he is, at least from a subject matter and experience perspective, qualified for the job.”

Republicans on Capitol Hill were quick to call for a speedy confirmation (see related story), though that will be initially stalled by a Senate recess through Feb. 27.

Acosta received his undergraduate and law degrees from Harvard University.

Puzder Reversal

Acosta’s public service record marks a stark reversal from Puzder, who was a trial attorney before rising to the top of CKE Restaurants Inc., but never served in government.

The same unions and Democrats who fiercely opposed Puzder’s nomination had a tame, open-minded reaction to the news that Acosta would be Trump’s new choice to run the DOL.

“Unlike Andy Puzder, Alexander Acosta’s nomination deserves serious consideration,” AFL-CIO President Richard Trumka said in a statement. “In one day, we’ve gone from a fast-food CEO who routinely violates labor law to a public servant with experience enforcing it.”

Minimal Controversy

At first glance, senators won’t have nearly as much controversial material to consider during Acosta’s confirmation process as they did with Puzder.

However, Acosta’s tenure at the Justice Department’s Civil Rights Division was the subject of a 2008 investigation by the department’s Office of Inspector General on politicized hiring.

The OIG report didn’t substantiate illegal political hiring on Acosta’s part, but it said he didn’t properly supervise a subordinate who committed hiring misconduct.

“Despite the warnings, they took no action to investigate” or “bring the matter to the attention of their supervisors,” the report said of Acosta and his colleagues.

“Democrats on the HELP Committee will certainly dig into Acosta’s tenure at DOJ’s Civil Rights Division and allegations of illegal political hiring,” said Harris, who now practices law at Dentons in Washington and teaches at Cornell University.

By contrast, Puzder came under fire after revelations that he employed an undocumented immigrant in his home and that his ex-wife once accused him of domestic violence before later recanting.

Rulemaking Views

Acosta’s brief tenure at the NLRB could shed light on how he’d oversee the DOL’s regulatory authority.

He participated in or authored more than 125 case decisions, according to his Florida International bio. However, he later argued in a 2010 FIU Law Review paper in favor of board rulemakings over case-by-case decisions.

“I think the pace at the NLRB frustrated him,” Harold Coxson, a shareholder at management law firm Ogletree Deakins in Washington, told Bloomberg BNA. “The regulatory environment I think is more to his liking, and more to his style than individual decisions.” Coxson said he’s known the new labor secretary pick dating back to Acosta’s days practicing law at Kirkland & Ellis.

Does that mean Acosta would seek to issue new regulations at the DOL?

“Certainly not at the pace and to the same degree as they have been issued in the past eight years with regard to being highly pro-union and highly anti-business,” Coxson said.

Democrats still promised to give Acosta a thorough vetting that would ensure he would be committed to protecting workers’ interests.

Liebman’s words suggest his confirmation will be relatively smooth. The former Acosta NLRB colleague said that even though she frequently disagreed with him on the issues, “he’s not hostile to the mission of the Department of Labor.”

To contact the reporters on this story: Ben Penn in Washington at bpenn@bna.comand Chris OpferTo contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com;

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