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Recent NLRB Confirmations Signal New Era for Employers

October 24, 2017 Posted in Legal Updates

The Senate’s recent confirmation of William J. Emanuel for the last vacant slot on the National Labor Relations Board is significant for employers.  Emanuel hails not just from the private sector but from a prominent employment defense firm.  According to his former firm, Emanuel has spent his career advocating on behalf of employers in traditional labor matters, including NLRB cases, collective bargaining, labor arbitrations, union election campaigns, strikes and picket lines, and litigation concerning union access to employers’ private property.

The NLRB is an independent government agency granted authority to enforce the National Labor Relations Act, which essentially provides for employees’ right to organize and bargain collectively with their employers.  The NLRB supervises representation elections when employees attempt to unionize their workplaces. Employees who believe their rights under the NLRA have been violated may file charges of unfair labor practices, and the NLRB has broad discretion to investigate and decide whether violations occurred. The NLRB’s jurisdiction extends to most private-sector employers. 

President Obama's appointees had included several highly union-friendly board members, including a former assistant general counsel of the SEIU.  This produced a trend toward more liberal interpretations of the NLRA by the NLRB in recent years, giving employers cause for concern about the Obama Board's reversals of long-standing precedents.  For example, a 2015 NLRB decision relaxed the traditional test for determining joint-employer status under the NLRA.  (Browning-Ferris Indus. of California, Inc., 362 NLRB No. 186 (Aug. 27, 2015)).  Even non-union workplaces were not spared, as the Board's new policies forced many employers to revisit long-held employment policies and agreements in apprehension that the Board majority would find the terms too restrictive of employees’ right to engage in concerted activity.  

Emanuel’s confirmation could turn the tide on this trend.  Emanuel joins Philip A. Miscimarra, a Board Member since 2013 who is now the newly-appointed Board Chairman.  Miscimarra also has a private practice background in management-side employment law.  Prior to Emanuel’s confirmation, Marvin E. Kaplan was the most recently-confirmed Board member; he had been nominated by President Trump in August.  Kaplan is former counsel to the OSHA Review Commission.  The remaining two Board members are Mark Gaston Pearce, former Board Chairman and former plaintiff-side labor and employment attorney, and Lauren McFerran, who previously served as counsel to the Senate Committee on Health, Education, Labor, and Pensions, and who has also worked for a law firm known for union representation.

Board Members serve a five-year term once they are appointed by a sitting President and confirmed by the Senate.  Pearce’s term is up in August 2018, and McFerran’s term ends in December 2019.    Miscimarra’s term will expire soon: this December.  He has indicated he will not seek another appointment, which will mean that President Trump will have one more seat to fill in the near future. 

President Trump has also moved to fill the Board's general counsel position with Peter R. Robb, a veteran management-side labor lawyer who has served as counsel for individual Board members in the past.  The NLRB general counsel serves a four-year term, and exercises general supervision over all NLRB attorneys and regional office personnel, as well as final authority on behalf of the Board as to the investigation of charges and the issuance and prosecution of complaints by the Board. 

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