HR Management & Compliance

Emanuel nomination called chance to ‘rein in’ Obama-era NLRB

President Donald Trump’s latest pick for the National Labor Relations Board (NLRB) is another signal that a “reining in” of the panel is on the way, according to attorneys who keep a close watch on the Board.NLRB logo

On June 27, the White House announced that William J. Emanuel, an attorney with the large management-side law firm Littler Mendelson, will be nominated for the remainder of a term expiring on August 27, 2021.

The Emanuel nomination follows word on June 19 that Marvin Kaplan, chief counsel to the Occupational Safety and Health Review Commission (OSHRC), is the nominee for the other vacant seat on the Board, with a term ending on August 27, 2020. Both nominees must be confirmed by the Senate.

If Emanuel and Kaplan are confirmed, the five-member Board will have its first Republican majority since 2007. Currently, Republican Philip A. Miscimarra serves as chair, with Democrats Mark G. Pearce and Lauren McFerran filling two of the Board’s five seats. Democrat Richard F. Griffin, Jr., serves as General Counsel. His term will be up in October.

“When the Board gets fully reconstituted with a new general counsel and three Republican members and a Republican chair, . . . they’re going to be like kids in a candy store. Where to begin?” said Kevin C. McCormick, an editor of Maryland Employment Law Letter and attorney with Whiteford, Taylor & Preston L.L.P. in Baltimore, following word of Emanuel’s nomination.

Areas the Board may tackle

McCormick hopes the new Board will be judicious and “go after cases that make sense.” One big area he hopes the NLRB tackles is what many see as an expansion of the Board’s role in the private sector, including how it reviews private-sector employers’ handbooks to decide what interferes with employees’ rights under the National Labor Relations Act (NLRA).

“The biggest help for most employers, primarily nonunion employers, is to get the Board out of their business,” McCormick said, noting that the Board has said that certain handbook provisions, such as rules against employees being discourteous to each other, may violate the NLRA’s provisions giving employees the right to engage in protected concerted activity.

John Lovett, an editor of Kentucky Employment Law Letter and attorney with Frost Brown Todd LLC in Louisville, Kentucky, agrees that the addition of Emanuel and Kaplan will give Miscimarra “the votes he needs to implement his many well-reasoned dissents from the Board’s Obama-era decisions.”

“I expect the new majority to create a business interest balancing test to bring some common sense to the Board’s review of employer policies,” Lovett said. He cited the Beaumont Hospital case, which deemed an employer’s employee conduct code unlawful. A majority of the Board thought the conduct code could be construed as chilling employees’ ability to exercise their right to engage in protected concerted activity.

In addition to different rulings on employer policies, Lovett expects other changes. “We can also expect the Board to return to its historic view of joint employers and appropriate units for collective bargaining,” he said.

McCormick said a Republican-dominated Board may take up the issue of microunits. In its 2011 Specialty Healthcare decision, the Board permitted small groups in an employer’s workforce to form a union, overturning previous precedent requiring that all similarly situated employees be included in a bargaining unit.

Allowing microunits means unions can “sharp-shoot a location,” McCormick said. For example, the Board’s microunit decision could allow a union to organize just “the men’s shoe department at Nordstrom’s” instead of also including workers in other departments, making collective bargaining harder to manage.

Joint employment is another issue Board watchers expect to get attention. The 2015 Browning-Ferris decision made it easier to prove joint employment, meaning companies and their contractors or franchisees can be considered jointly liable for labor violations.

About the nominees

Emanuel represents employers in his practice in the Los Angeles Littler Mendelson office. An announcement from the law firm says he has extensive experience representing employers in traditional labor matters, including NLRB cases, collective bargaining, labor arbitration, union election campaigns, strikes and picket lines, and litigation concerning union access to employers’ private property.

Before beginning his current position with the OSHRC, Kaplan spent almost seven years serving as counsel, first to the House Committee on Oversight and Government Reform and then to the House Committee on Education and the Workforce, according to a White House announcement. In those positions, he was responsible for labor and employment oversight and policy, including the NLRA, the Labor-Management Reporting and Disclosure Act (LMRDA), and the Labor Management Relations Act (LMRA).

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