Seyfarth Synopsis: A review and analysis of select NLRB cases decided by President Trump’s new appointee as Secretary of Labor and former NLRB Member Alexander Acosta.

With the withdrawal of Andrew Puzder from consideration for the Secretary of Labor vacancy on President Donald Trump’s cabinet, former NLRB Member Alexander Acosta has emerged as the candidate for the role. If confirmed, Mr. Acosta will become the first Hispanic member of the Trump Cabinet. While his confirmation has not yet been accomplished, and it is impossible to predict precisely the direction the Department of Labor will take if and when Mr. Acosta assumes the mantle of leadership, reviewing some of his words from his time as an NLRB Member is an interesting exercise, and may provide a few clues about his priorities and possible goals. One thing that stands out in the opinions is his desire to follow precedent and established law, even where it results in an outcome that he may not support philosophically.

Mr. Acosta was appointed to the NLRB by President George W. Bush, and served his tenure in 2002 and 2003, as a member of the Majority. Nonetheless, Mr. Acosta occasionally availed himself of concurring or dissenting opinions to highlight his views on particular issues. Below, we review just a few.

Alexandria Clinic, P.A., 339 NLRB No. 162 (2003) – In a concurring opinion, Mr. Acosta agreed with his majority colleagues that the employer did not violate the NLRA when it discharged several employees for participating in a strike without giving the requisite notice under Section 8(g) of the Act. Mr. Acosta explained his view that the statutory language was clear and that “because the statutory language is unambiguous, we cannot depart from it.” Mr. Acosta further warned against the dangers of ignoring the plain language of the statute – from increased litigation to uncertainty for employers.

Double D Construction Group, Inc., 339 NLRB No. 48 (2003) – Concurring with his majority colleagues, Mr. Acosta expressed a strong view on the rights of undocumented immigrant workers. Mr. Acosta explained that the Administrative Law Judge discredited an employee’s testimony because he had used a false Social Security number to apply for work, and concluded from that act that the employee might offer false testimony. Mr. Acosta firmly rejected this view, explaining that undocumented workers are statutory employees entitled to the protections of the NLRA. He stated that a blanket policy of discrediting any “once-undocumented worker, who to obtain work provides a false social security number,” was inconsistent with the Act and that “such an automatic sanction makes it exceedingly difficulty for the General Counsel to establish an unlawful discharge or other unfair labor practice directed against an undocumented worker.” While Mr. Acosta acknowledged that providing a false social security number is relevant to a credibility determination, he warned that the NLRB’s “continued commitment to prosecuting unfair labor practices directed against undocumented workers requires an understanding of the workplace and life realities faced by these individuals.”

Comcast Cablevision-Taylor, 338 NLRB No. 166 (2003) – Concurring in a decision related to a representation case, Mr. Acosta used his platform to highlight “potential inconsistencies in Board case law.” Mr. Acosta expressed concern that the Sixth Circuit had used a Board holding in a previous case to rule on enforcement issues, but that the Board had not considered whether the case itself, or some other related inconsistent precedent, remained good law. Mr. Acosta encouraged the Board to reconcile its precedent so as to avoid inconsistent results.

While Mr. Acosta’s confirmation is not yet accomplished, Republicans and Democrats alike have characterized him as a longtime public servant with experience enforcing labor laws. This small sampling of his concurrences indicates that he values logical decision-making based on the plain language of the law, where appropriate, and that he considers the consistency of precedent to be of importance. His concurring opinion in Double D Construction reveals that he considers the government as having a role in protecting the rights of undocumented workers. If confirmed as Secretary of Labor, Mr. Acosta will – of course – not be responsible for enforcing the NLRA. His concurrences as a Member of the NLRB, however, provide interesting insights into the Department of Labor he may soon run.