When Republican Alexander Acosta voted to overturn a judge’s ruling against a worker who was in the U.S. illegally, he didn’t stop at merely disagreeing with the court’s decision.
Acosta, then a member of the National Labor Relations Board, penned a legal tongue-lashing of the administrative law judge, arguing that federal labor law protects employees without legal immigration status and writing with sympathy about the Latino worker who had used phony identification to get a job.
“This agency’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,” wrote Acosta in the 2003 case involving a Miami contractor accused of firing the worker because he was pro-union.
This wasn’t the first time Acosta had parted with his Republican colleagues on the NLRB, and it wouldn’t be the last. Over the course of eight months at the federal agency that hears labor cases, Acosta established a record that while solidly conservative occasionally leaned left.
It reflects an independent, non-ideological streak that should help him get through Senate confirmation hearings to become the secretary of President Donald Trump’s Labor Department, even as it raises questions among some Republicans about Acosta’s commitment to the GOP’s pro-business agenda.
“He’s not hostile to government,” said Wilma Liebman, who served with Acosta on the NLRB and later became chairman. “He sometimes voted with the Democrats, he often didn’t, but he’s not an ideologue.”
Liebman and other former colleagues of Acosta’s on the board view him as an upgrade over fast-food executive Andrew Puzder, Trump’s first nominee for labor secretary, who withdrew his name after facing widespread criticism over issues ranging from strong anti-union stances to accusations of spousal abuse and an admission that he had hired a housekeeper who was in the country illegally.
“Alex will make unions feel that they can go to him, that he will be open, that he will not be rigid and will listen to their concerns,” said Peter Schaumber, a fellow Republican appointee of George W. Bush who joined the NLRB the same day as Acosta. “That’s all a very good thing, so I think it was an excellent appointment.”
Liebman, a Democratic appointee of President Bill Clinton, praised Acosta’s open-mindedness.
“I don’t think he’s knee-jerk pro-business or anti-worker,” Liebman said. “He was conservative in that he wasn’t looking to expand the law, but he believed in enforcing it.”
There were three Republicans and two Democrats on the board when Acosta served from Dec. 17, 2002, to Aug. 21, 2003. He left to take a Justice Department post.
Most of the 125 cases heard during his tenure were decided by three-member panels, although the full board had to sign off on each ruling.
That structure meant that Acosta often ended up on a panel with another Republican and one of the two Democrats. While he sided plenty of times with a fellow Republican in 2-1 or 3-0 rulings, his willingness to become the key swing vote in a 2-1 ruling by backing the Democrat sometimes angered the second Republican.
Schaumber, described by other members as the most conservative of the three Republicans who served with Acosta, praised him as “an engaging guy” whom he liked even though Acosta’s decisions sometimes left Schaumber or another of the Republicans odd man out.
“Alex joined with a Democratic member to form a majority in a number of cases and to form a dissent over the Republican member,” Schaumber said. “I think it was because he agreed with the way they viewed the facts.”
In some NLRB decisions, Acosta took the unusual step of agreeing with other members but writing separate concurring opinions that explained his thinking.
“I had concurring opinions, but they were few and far between,” Robert Battista, also a Republican appointee of Bush, told McClatchy. “It was unusual.”
Battista, now 77, liked Acosta, calling him “a bright young man who seemed to get along with both Democrats and Republicans.” But the former Detroit attorney found Acosta’s habit of writing concurring opinions a bit off-putting.
“I was strong on productivity – getting cases out the door,” said Battista, who chaired the NLRB while Acosta was on it. “The problem with concurring opinions is they slow down the case-issuance process fairly significantly. You write a separate concurrence and then both the person you’re forming a majority with and the dissent get an opportunity to respond to your concurring opinion. As you go back and forth with drafts, it just slows the decision-making process down.”
The case involving the Miami contractor, Double D Construction Co., demonstrated Acosta’s tendency.
Liebman wrote the main opinion finding that Donald Lock, the firm’s president, had threatened employees with discharge because of their union activities. Schaumber wrote a partial dissent, saying the administrative law judge had been right to discredit Tomas Sanchez’s testimony because he’d provided a false Social Security number.
Acosta sided with Liebman but wrote a long concurring opinion in order, he explained, to express his “substantial disagreement with the judge’s reasoning and to emphasize the consequences (for other cases) that could result were the judge’s holding permitted to stand.”
Battista and others who served with Acosta attribute such separate opinions to his intellectual precision and a certain meticulous mindset.
“It might be that Alex wanted to differentiate himself from the pack and highlight his particular thought process,” Battista said. “Alex wanted to distinguish himself from the other members of the board.”
Liebman said Acosta was a careful, independent thinker who delved deeply into cases.
“He was a good colleague,” she said. “I enjoyed talking with him. We spent a lot of time discussing cases. I found him to be very intelligent and very serious about the law. He had an academic interest in it. He worked hard at trying to come to the right solutions. We didn’t always agree on policy issues or case outcomes, but he was always willing to discuss them, and sometimes we did agree.”
In one case, Acosta and Liebman ruled, with the Republican, Schaumber, dissenting, against a South Carolina company called Aesthetic Designs Inc.
The firm claimed that a worker’s union-election vote should be invalidated because he’d used a sample ballot instead of an official one. Citing previous NLRB rulings, Acosta and Liebman said “a voter’s preference must be given effect whenever possible.”
Then, as now, the highest-profile cases were ruled on by the entire board.
One involved another union election, at Daimler-Chryster Corp., and it saw Acosta join the board’s Democrats, Liebman and Dennis Walsh, against fellow Republicans Schaumber and Battista.
Acosta, Liebman and Walsh ruled that Daimler-Chrysler had erred in disqualifying a worker’s ballot because it had multiple markings. The worker, they ruled, had clearly signified his intent by placing an X in the YES box.
That decision was especially significant because the local union had been certified by a one-vote margin, so it avoided the result being reversed.
There were other rulings, however, in which Acosta teamed with a fellow Republican in favor of companies defending their treatment of unions.
Acosta and Battista, overcoming Liebman’s dissent, ruled that Onan Corp., a Minneapolis auto-parts company, had not tainted a union election by announcing its settlement of a class-action pension lawsuit 10 days before the election.
“The employer had consistently informed employees of developments in the lawsuit and settlement negotiations, and consistent with that approach, the employer announced the settlement agreement on the day it was reached with representatives of the class,” Acosta and Battista wrote.
In another five-member decision, this one unanimous, Acosta joined his colleagues in determining that members of a Teamsters local union had engaged in unlawful picketing outside a General Motors plant in Baltimore.
The picketers had protested GM’s decision to replace a union hauling company with a non-union one. In a concurring opinion backing the automaker, Acosta cited a 1938 Supreme Court ruling that he said had “survived scrutiny” for decades.
Acosta joined Schaumber and Liebman in ruling against a Bronx butcher’s claim that he should be exempt from labor law penalties because his English was too poor to understand the requirements.
Jay Krupin, a prominent labor lawyer who represents companies for the BakerHostetler firm in Washington, said Acosta’s evenhanded work on the NLRB gave him hope that the Floridian was the right man to lead the Labor Department.
“The decisions that he was a part of and some of his dissents were reasoned on a practical basis,” Krupin said. “He wasn’t an ideologue who just voted along party lines. I trust that he will consider the facts of the case and have the courage to move forward with the most important issues that affect the American workplace.”
Schaumber is confident that despite having shown sympathy for workers in some of his rulings, Acosta will back Trump’s pro-business agenda.
“I think he’ll adhere to the administration’s policy,” Schaumber said. “There may be occasions where he compromises on an element of it because he understands the unions’ concerns, but that’s a good thing. All in all, his nomination is a plus.”
CORRECTION: An earlier version of this article misspelled the last name of Andrew Puzder, former nominee for labor secretary.