Who’s Next? Will R. Alexander Acosta Pass Muster for Department of Labor Secretary?

By: Michael Giarratano

Amid losing support from both sides of the aisle, due to the allegations of his past treatment of women he has employed and in his personal life,[1] as well as, admitting that he had employed an undocumented immigrant for years,[2] this past Wednesday, February 17th CEO of the Carl’s Jr. and Hardee fast-food chain franchises, Andrew Puzder withdrew his nomination to become President Trump’s labor secretary.[3]

President Trump, wasting no time at all, tapped Alexander Acosta on February 17, 2017 to become the next Department of Labor Secretary.[4]  This pick by President Trump is in stark contract with his initial pick of Andrew Puzder.[5]  In tapping Mr. Acosta, it was a much more conventional pick.[6]  Mr. Acosta has a wealth of experience in all different areas, such as labor relations, law and education.[7]  In addition to Mr. Acosta being the first Hispanic in President Trump’s cabinet, it will be hard for democrats to stonewall his nomination.  He has already been vetted and approved by the Senate on three different occasions.[8]  First, he was appointed by President George W. Bush to the National Labor Relations Board from 2002-2003, second, was nominated and appointed to become the assistant attorney general for the Justice Department’s Civil Right Division and third, he went on to be nominated to the position of Untied States Attorney General for the Southern District of Florida.[9]  In addition to lengthy experience in government, clerked for Justice Samuel Alito when he was an Appeals Court judge and he most recently is the chairman of the U.S. Century Bank and the dean of the Florida International University College of Law.[10]

Assuming Mr. Acosta is confirmed by the Senate, what does this mean for labor relations?  If we look into his decisions from his time at the NLRB, it shows that he had more of an academic approach rather than ruling along party lines.[11]  This pick makes political sense if President Trump is trying to keep the support of blue collar workers.[12]  During his short tenure at the NLRB, Mr. Acosta was in the majority of major pro-union decisions.[13]  In Kroger v. United Food and Commercial Workers Union Local 700, the board, including Mr. Acosta, affirmed the administrative law judge’s findings that Kroger violated Section 8(a)(1) of the Act by telling the Union that they could not discuss union business during working hours at Kroger and that they would be fired if they did discuss Union business on company time.[14]  Union leaders have recognized this and believe that Mr. Acosta is a much better option for unions than the previous nominee Puzdner.  Richard Trumpka, the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) was very pleased with President Trump’s new nomination and stated “in one day we’ve gone from a fast-food CEO who routinely violates labor law to a public servant with experience enforcing it.”[15]

Mr. Acosta received an important endorsement from the International Union of Operating Engineers, stating they were happy with Trump’s nomination of Mr. Acosta.  Union President James T. Callahan stated that “[M]r. Acosta has proven himself to be fair and open minded” and “[Mr. Acosta] has proven that he can handle disparate opinions and information in order to make thoughtful decisions on difficult issues.”[16]  Although not all union leaders are as supportive as Mr. Callahan and will still be critical during the nomination process, one thing is for certain, union leaders are very happy that Andrew Puzder is no longer an option.

[1] Dan Merica & Manu Raju, Inside Andrew Puzder’s Failed Nomination, CNN (Feb. 15, 2017 11:31 PM), http://www.cnn.com/2017/02/15/politics/andrew-puzder-failed-nomination/.

[2] Id.

[3] Alan Rappeport, Andrew Puzder Withdraws From Consideration as Labor Secretary, New York Times ( Feb. 15, 2017), https://www.nytimes.com/2017/02/15/us/politics/andrew-puzder-withdrew-labor-secretary.html?action=click&contentCollection=Politics&module=RelatedCoverage&region=Marginalia&pgtype=article.

[4] Alan Rappeport, R. Alexander Acosta, Law School Dean, Is Trump’s New Pick for Labor, New York Times (Feb. 16, 2017), https://www.nytimes.com/2017/02/16/us/politics/alexander-acosta-labor-secretary-trump.html?_r=0.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Shannon Pettypiece, Trump Nominates Ex-NLRB Member Acosta as Labor Secretary, Bloomberg (Feb. 16, 2017 4:28 PM), https://www.bloomberg.com/politics/articles/2017-02-16/trump-said-to-choose-ex-nlrb-member-acosta-as-labor-secretary.

[11] Daniel Wiessner, New Labor Nominee Acosta’s NLRB Record Suggests Nonpartisan Approach, Thompson Reuters (Feb. 17, 2017), https://1.next.westlaw.com/Document/I2057b8c0f4fa11e68ca6b836297c09ca/View/FullText.html?transitionType=SearchItem&contextData=(sc.Category).

[12] Id.

[13] Id.

[14] Kroger v. United Food & Commercial Workers Union Local 700, 339 N.L.R.B. No. 88  (2003).

[15] Nikita Vladimirov, AFL-CIO: Trump’s New Labor Pick Deserves Serious Consideration, The Hill (Feb. 16, 2017 3:10 PM), http://thehill.com/homenews/administration/319949-afl-cio-trumps-new-labor-pick-deserves-serious-consideration.

[16] Sean Higgins, Union Backs Acosta for Labor Secretary, Washington Examiner (Feb. 16, 2017 5:56 PM), http://www.washingtonexaminer.com/union-backs-acosta-for-labor-secretary/article/2615100.

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