This post is part of a series on the candidates we understand to be under consideration for Secretary of Labor.
Last week, President-elect Donald Trump met with Peter Kirsanow, a management-side employment and labor attorney practicing with Benesch, Friedlander, Coplan & Aronoff. Although he is based in Cleveland, OH, Kirsanow, an African-American conservative, is no stranger to Washington. He served as a member of the NLRB from 2006 to 2008. Currently, Kirsanow is a member of the U.S. Commission on Civil Rights.
National Labor Relations Board Opinion Highlights
While on the Board, Kirsanow participated in a number of decisions that were criticized for undermining protections for unionized employees. In 2009 in Oakwood Healthcare, Inc., the Board reinterpreted three aspects of the statutory definition of “supervisor” enumerated in Section 2(11) of the Act. This decision expanded the group of employees who are defined as supervisors and therefore excluded from the bargaining unit. The dissent in the case criticized the majority’s approach as “threaten[ing] to create a new class of workers under federal law: workers who have neither the genuine prerogatives of management, nor the statutory rights of employees.”
Kirsanow also participated in the weakening of protections against “salts” in Oil Capitol Sheet Metal, Inc. and Toering Electric Co.. In Oil Capitol Sheet Metal, Inc., the Board eliminated the presumption that a union salt fired for discriminatory reasons would have been employed indefinitely, placing salts on unequal footing with other employee victims of discrimination. This decision marked a departure from the Board’s prior rule, which placed the burden on the employer to show backpay should be reduced for salts. Protections for salts were further eroded in Toering Electric Co., where the Board stated that the Act only protects job applicants who are “genuinely interested in seeking to establish an employment relationship with the employer.” The dissenters in this decision argued that this new standard undermined the status of salting as a protected, concerted activity under Section 7 of the Act.
Finally, Kirsanow joined the majority in two cases that diminished protections for unionized employees in the card check process. In Dana/Metaldyne, a precedent later reversed in Lamons Gasket Co., the Board overturned a 40-year precedent and reformulated the Board’s recognition bar doctrine. Under the rule in Dana/Metaldyne, 30 percent of a unit could force a decertification vote or vote for alternative representation within 45 days of the employer’s voluntary recognition of the union. Emphasizing the differences between secret ballot and card check elections, the majority questioned whether card check elections were reliable indicators of employee free choice because “card signings are public actions, susceptible to group pressure exerted at the moment of choice.” In Wurtland Nursing, decided the same day, the Board found that a petition showing that 50 percent of employees wanted to decertify their union was sufficient for immediate decertification without holding a secret ballot vote.
Kirsanow has also remained active in current disputes over the meaning of the National Labor Relations Act. He has been critical of the NLRB’s representation election rule. Kirsanow also opposes the Board’s decision in Browning-Ferris and believes it should be overruled.
U.S. Commission for Civil Rights
A George W. Bush appointee to the U.S. Commission for Civil Rights, Kirsanow has advocated conservative positions.
Illegal Immigration and African-American Employment
Kirsanow has been vocal regarding the detrimental impact of illegal immigration on low-wage jobs held by African Americans. Kirsanow voted to approve a U.S. Comission for Civil Rights report that stated that reducing or eliminating the flow of undocumented immigrants would improve workforce participation of black workers. Testifying before Congress, Kirsanow stated that undocumented immigrants compete with low-wage workers, particularly African American men, and drive down wages. He advanced the theory that undocumented immigration correlates to increased rates of incarceration among African Americans. Kirsanow argues that lower wages and higher rates of imprisonment create a ripple effect contributing to the destabilization of black families.
In 2016, the U.S. Commission on Civil Rights released a report on the conflicts that can occur between religious liberty and other civil rights protections. Despite voting to release the report, Kirsanow suggested that the report, which stated that “religious exemptions to the protections of civil rights based upon classifications such as race, color, national origin, sex, disability status, sexual orientation, and gender identity, when they are permissible, significantly infringe upon these civil rights,” should serve as “an alarm to liberty loving Americans.” In the context of the conflict between sexual orientation and religious liberty, Kirsanow believes in the primacy of religious liberties.
Kirsanow is a proponent of the controversial “mismatch” theory, positing that African American students are disadvantaged when they are admitted to prestigious universities they would not have been admitted to without affirmative action. Recently, Kirsanow has garnered attention for a brief he filed with fellow member of the U.S. Commission on Civil Rights, Gail Heriot, in Fisher v. Univ. of Texas at Austin. Justice Scalia referenced this brief when he intimated that black students might be more successful at “slower-track” universities.
Other Employment Issues
Kirsanow has been sharply critical of President Obama’s minimum wage executive order, which increased the minimum wage to $10.10 an hour for federal contractors. Kirsanow contends that the order is an unconstitutional exercise of executive power. Kirsanow disputes that he is an opponent of minimum wage laws generally, but he is against indexing the minimum wage. He also indicated that he believes increasing the minimum wage, especially coupled with immigration reform, would “[p]rice [low-skilled workers] right out of the market.” Additionally, he opposes the prevailing wage, arguing that the requirement disadvantages small businesses in bidding for these projects.