More Probusiness NLRB on the Way as Emanuel Wins Confirmation

As William Emanuel takes a seat on the National Labor Relations Board (NLRB), employers will see the panel going in a more probusiness and less union-friendly direction, Board watchers say, but it will take a while before cases come up to roll back recent decisions.

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Emanuel, an attorney representing management in labor and employment matters, won confirmation by the Senate on September 25, giving the panel its first Republican majority in 10 years. Emanuel most recently practiced in the Los Angeles office of large management-side law firm Littler Mendelson.

An announcement from the law firm after his nomination said 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.

John Lovett, an attorney with Frost Brown Todd LLC in Louisville, Kentucky, wrote about Emanuel’s nomination in the September issue of Kentucky Employment Law Letter, saying, “The change of direction may be most apparent—and most dramatic—when it comes to the NLRB’s regulation of employment policies unrelated to unions or union organizing. Of the approximately 1,200 NLRB decisions from 2012 through 2016, almost 20 percent involved some kind of workplace rules having nothing to do with unions.”

Lovett explained that the Democrat-majority NLRB took aim at employment policies that could be interpreted as chilling workers’ rights to engage in protected concerted activity under the National Labor Relations Act (NLRA).

“The NLRB set aside a wide variety of employment policies that just seemed like common sense,” Lovett wrote. “Workplace policies as simple as requiring ‘respectful,’ ‘professional,’ or ‘courteous’ conduct between employees failed to satisfy NLRB scrutiny.”

Emanuel gets high marks from probusiness interests. In a letter to the Senate’s Committee on Health, Education, Labor and Pensions, Neil L. Bradley, senior vice president and chief policy officer of the U.S. Chamber of Commerce, said, “Mr. Emanuel’s many years of representing employers in labor disputes makes him well-prepared to serve on the NLRB and restore balance to the National Labor Relations Act case law.” The letter also stated Emanuel would help the NLRB serve “as an objective evaluator of the law and the facts before it.”

Emanuel has come under fire from prolabor interests. In a letter to senators in July, William Samuel, government affairs director of the AFL-CIO, said, “Emanuel has exclusively represented employers, most recently at the notorious union-busting law firm Littler Mendelson. He confirmed at his confirmation hearing that he has never represented a worker or union in an employment matter—not even in pro bono work.”

Although Emanuel’s confirmation creates a 3-2 Republican majority, the NLRB will soon revert to another 2-2 tie in December when Board chair Philip Miscimarra’s term expires. He has announced that he won’t accept another term. So the Board will again be operating with two Democrats—Mark G. Pearce and Lauren McFerran—and two Republicans—Emanuel and Marvin E. Kaplan, who was confirmed on August 2.

New General Counsel on the Way

In addition to gaining a new Republican seat on the five-member NLRB, the panel is expected to soon have a new management-side attorney as its general counsel. Peter Robb, currently an attorney at the Vermont law firm Downs Rachlin Martin PLLC, has been nominated to the post and is expected to win confirmation in time to take the post in November when current general counsel Richard F. Griffin, Jr.’s term ends.

The general counsel largely sets the tone for the NLRB since, as the Board’s website explains, it’s the general counsel who “is responsible for the investigation and prosecution of unfair labor practice cases and for the general supervision of the NLRB field offices in the processing of cases.”

Lovett says the general counsel confirmation will have a more immediate impact than any other NLRB development. “The new general counsel will have an immediate impact on how the [NLRA] is enforced,” he says. “The new Board majority will have to wait for the right case to come before them to reverse the dramatic changes put in place during the previous eight years.”