Alex Acosta’s Sympathies

We still have a lot to learn about Alex Acosta, Donald Trump’s new nominee for Labor Secretary, but one case he ruled on during his brief stint at the National Labor Relations Board suggests that, not surprisingly for a Trump appointee, he is likely to favor employers over workers when faced with a close question.  In Alexandria Clinic, P.A., a 2003 case, Acosta, joined by two other Republican Board members, overruled a twenty-four year old precedent to uphold the firings of 22 licensed practical nurses who were fired for striking at the health care clinic where they worked.

The National Labor Relations Act provides that unions must give health care institutions at least ten days’ notice before striking, and the notice must state “the date and time” the strike will commence.  The Act further provides that an employee loses her status as an employee if she strikes “within” the notice period.  In this case, the union provided ten days’ notice of its intent to strike on September 10 at 8 a.m.  After the notice went out, the nurses decided that it would be less disruptive for patients if they struck at 11:45 a.m., instead of 8 a.m., and so they decided to begin their strike at 11:45.  The employer was well-prepared to weather the strike, as it had temporary nurses standing by to replace the nurses as soon as they went out.  There was no finding that any patient was harmed as a result of the strike.

The question for Acosta and his colleagues on the NLRB was whether the nurses had lost the protection of the NLRA because they started their strike later than the time provided in the notice.  If the workers had struck four hours before the noticed time, the answer would be clear – the workers would have lost the protection of the Act.  But, as the two dissenting Board Members pointed out, the statute did not address whether workers also lose the protection of the Act if they strike a short time after the time provided in the notice.  In a 1979 case, and for twenty-four years after that the Board had relied upon legislative history to hold that the notice provision should “not be rigidly applied in light of serious consequences flowing from noncompliance with its provisions, i.e. the strikers’ loss of employee status under the Act.”  But, Acosta and two of his colleagues cast that precedent aside to uphold the firings.  Acosta insisted that the case was controlled by clear language in the statute, pointing to the last sentence of the notice provision, which states:  “The notice, once given, may be extended by the written agreement of both parties.”  To Acosta, this meant that a union could only push back the start time of the strike with the written consent of the employer.  But, Acosta failed to acknowledge that the loss of status provision (i.e. the provision authorizing termination of employment) only applies to strikes “within” the notice period, not to a strike occurring shortly after the time provided in the notice.  So, even if a union violates the statute by not striking exactly at the time set forth in the notice, it doesn’t necessarily follow that the appropriate consequence is loss of the Act’s protections for the striking workers.  Here, it is worth noting that the typical remedy for many employer violations of the NLRA is simply a notice posting and a prospective cease and desist order.

So, to sum up, here we had a case where a group of nurses changed the start time of their strike because they wanted to cause less inconvenience to their employer’s operations.  The employer suffered no harm from the change, yet it sought to punish the workers based on an aggressive legal theory.  Rather than protecting the workers, Acosta and his colleagues overturned precedent to uphold the firings.  Even worse, instead of acknowledging that he was exercising discretion to favor the employer, Acosta wrongly insisted that the outcome was compelled by the statutory language.  The Secretary of Labor is charged with enforcing the Fair Labor Standards Act, the Family and Medical Leave Act, the Occupational Safety and Health Act, and other workplace protection laws.  I’d certainly much rather have Acosta in this role than Andrew Puzder.  But, I’m not convinced that when working people voted for Trump they were actually expressing support for a Secretary of Labor who would put his thumb on the scale to deny protection to workers the way Acosta did in the Alexandria Clinic case.