April 28, 2017

April 28, 2017

Subscribe to Latest Legal News and Analysis

April 27, 2017

Subscribe to Latest Legal News and Analysis

April 26, 2017

Subscribe to Latest Legal News and Analysis

Labor Department Nominee’s Opinions as National Labor Relations Board Member

R. Alexander Acosta, President Donald Trump’s nominee as the next Secretary of Labor, served on the National Labor Relations Board from December 17, 2002, to August 21, 2003. He was confirmed by the United States Senate on November 22, 2002, having been nominated by President George W. Bush. Acosta, a Republican, served with fellow Board members Wilma Liebman (Democrat), Peter Schaumber (Republican), Dennis Walsh (Democrat), and Chairman Robert Battista (Republican). During his term, Acosta participated in the issuance of more than 120 opinions.

It is difficult to determine Acosta’s precise views on labor law topics. Probably because he was part of a Republican majority controlled Board, he did not dissent in any of the opinions in which he participated, and he concurred in only one (described below). Acosta appears to have taken a middle-of-the-road approach to labor relations during his time on the Board, finding for and against labor unions and employers. This is consistent with the views of former NLRB Chair Liebman, who served with Acosta. In a recent interview with Law360, she described him as “not knee-jerk anti-worker or anti-union.” She continued, “He was interested in looking at the law and how [to] apply it.”

The Board’s record while Acosta was a member is almost devoid of significant cases. Only one can be described as groundbreaking. In Alexandria Clinic, 339 NLRB 1262 (2003), the NLRB decided that an employer did not violate the National Labor Relations Act when it terminated several employees who had gone out on strike. In that case, the union had given a strike notice to the employer-hospital setting the date and time for a strike. Thereafter, the union delayed the strike for four hours. The employer terminated the striking employees, and the Board found the terminations were lawful. Interpreting Section 8(g) of the Act, the Board decided that, once a 10-day notice is given to an employer, it may be extended only by the written agreement of both parties.

Although not groundbreaking, two other decisions are worth noting. In USF Red Star, Inc., 339 NLRB 389 (2003), among other things, the employer gave warnings to employees who had worn a button on which was written “Overnite Contract in ’99 Shut Overnight Management Down or 100,000 Teamsters will.” Surprisingly, the Board panel, which consisted of two Republican members, including Acosta, found the employer’s giving of the warnings violated the NLRA. In the other case, 1199, National Health & Human Services Employees Union, SEIU, AFL-CIO, 339 NLRB 1059 (2003), the Board decided that the union violated the NLRA when an organizer engaged in a series of open confrontations with managers, supervisors, and security guards employed by the employer-hospital. Agreeing with the administrative law judge, the NLRB found that the organizer’s actions violated the NLRA because “employees may be restrained or coerced in their protected activities by union misconduct directed not against them but again supervisors, managers and security guards. Union misconduct of this character coerces employees who witness it or learn of it because they may reasonably conclude that if they do not support the union’s goals, like coercion will be inflicted upon them.”

In a law review article, “Rebuilding the Board: An Argument for Structural Change, Over Policy Prescriptions, at the NLRB,” Acosta advocated for more NLRB rulemaking because of what he calls the NLRB’s “caselaw oscillation” and “flip-flops,” most notably on the issue of non-union employees’ right to representation at an investigatory interview from which discipline might result (Weingarten rights). FIU Law Review, Volume 5, Number 2 (Spring 2010).

Finally, Acosta’s one concurring opinion is on immigration. In Double D Construction Group, Inc., 339 NLRB 303 (2003), the discharge of an undocumented worker was determined by the NLRB to be lawful. The administrative law judge had discredited the worker’s testimony on the ground that he knowingly had used a false Social Security number to obtain employment. Acosta concurred in upholding the judge’s decision, but cautioned that the judge’s reasoning was overly broad because it would deny undocumented workers their NLRA Section 8 protections. He wrote that, discrediting the testimony of any undocumented worker who used a false Social Security number to gain employment would make it “exceedingly difficult” for the NLRB’s General Counsel to establish that a discharge or other unfair labor practice directed against an undocumented worker was unlawful.

For more on the nominee, see R. Alexander Acosta Picked to Head Department of Labor.

Jackson Lewis P.C. © 2017

TRENDING LEGAL ANALYSIS


About this Author

Philip B. Rosen, Jackson Lewis, Preventive Practices Lawyer, Collective Bargaining Attorney
Principal

Philip B. Rosen is a Principal in the New York City, New York, office of Jackson Lewis P.C. He is a member of the firm's Board of Directors and co-leads the firm's Labor and Preventive Practices Group. He joined the firm in 1979 and served as Managing Partner of the New York City office from 1989 to 2009.

Mr. Rosen lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media, reorganizations and reductions-...

212-545-4000
Howard Bloom, Jackson Lewis, labor union attorney, unfair practice investigations lawyer, employment legal counsel, bargaining law
Principal

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification campaigns. He also represents clients at the National Labor Relations Board in connection with bargaining unit issues, objections and challenges, as well as unfair labor practice investigations and trials. Mr. Bloom also has been the spokesperson at countless first and successor contract collective bargaining negotiations, and regularly advises on collective bargaining agreement administration issues, including grievance/arbitration issues.

Mr. Bloom has appeared before the Massachusetts Supreme Judicial Court, the U.S. Court of Appeals for the District of Columbia, several U.S. District Courts, the National Labor Relations Board, the Massachusetts Labor Relations Commission, the Equal Employment Opportunity Commission and the Massachusetts Commission Against Discrimination.

617-367-0025
Linda R. Carlozzi, Jackson Lewis, arbitration proceedings lawyer, corporate transactions attorney
Principal

Linda R. Carlozzi is a Principal in the New York City, New York, office of Jackson Lewis P.C. She joined the firm in 1997 and focuses her practice on traditional labor law.

Ms. Carlozzi counsels clients in the development and implementation of preventive labor and employee relations programs. She advises both unionized and union-free clients on a full range of labor and employee relations matters, with a focus on traditional labor law. She has represented numerous employers during arbitration proceedings and negotiations....

212-545-4040