NLRB Nominees Expected to Change Board’s Direction

On Tuesday, President Trump nominated labor attorney William J. Emanuel to fill one of two vacancies to the National Labor

William Emanuel

Relations Board (NLRB). Last week, he nominated Marvin E. Kaplan to fill the other vacancy.

Currently, the Board is comprised of Democrat members Mark Gaston Pearce and Lauren M. McFerran as well as Republican member and newly-appointed Chair, Phillip A. Miscimarra. Former union attorney Richard F. Griffin Jr.’s term as General Counsel expires at the beginning of November.

Thus, despite the fact that President Trump assumed the presidency in January of this year, the Board has continued to operate in the same fashion as it has for the last eight years. Many in the business community believe the NLRB’s recent rulings contain policy missteps.

Both Emanuel and Kaplan come with many years of labor law experience. Emanuel is a shareholder in the Los Angeles office of a national labor and employment firm where he advises employers on traditional labor law matters. His firm biography touts him as having an expertise regarding union access to employers’ private property.

Kaplan was most recently counsel to Heather L. MacDougall, former Acting Chair of the Occupational Safety and Health Review Commission (OSHRC). Prior to his position with OSHRC, Kaplan served as the Republican workforce policy counsel for the House Education and the Workforce Committee.

It is still too early to predict how Emanuel and Kaplan will be received by the U.S. Senate, which must vote to approve their nominations. However, Board nominations can sometimes be contentious simply because of the significant role the Board plays in setting national labor policy.

What will be the new board’s priorities?

For starters, the business community is hopeful that a new NLRB will review the previous Board’s dramatic policy shifts on joint employment, fractured bargaining units, ambush elections, and class action waivers in arbitration agreements, among other issues. Of course, the Board’s standards on joint employer and class action waivers are the subject of appeals currently awaiting decisions from the D.C. Court of Appeals and the U.S. Supreme Court respectively. If these courts act before a new Board does, they could establish the contours for what the Board can or cannot do in these areas.

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Other issues such as employees’ use of company email for organizing purposes and employers’ abilities to establish reasonable workplace rules could also be addressed.

Besides getting a late start, there is another reason why the new Board might find it a bit difficult to hit the ground running: the continued presence of General Counsel Griffin. Many in the business community expect that Griffin will likely spend his remaining months in office trying to prevent or delay the new Board from advancing its new policy agenda. However, Griffin’s ability to do this is diminished with regard to representation decisions, so there may be some early opportunities for the new Board in this area.

Ultimately, history will judge the effectiveness of the new Board’s ability to return balance to our nation’s labor policy. For today, many employers are simply encouraged by this first step.

This article was drafted by the attorneys of Ogletree Deakins, a labor and employment law firm representing management, and is reprinted with permission. This information should not be relied upon as legal advice.

Jim Plunkett is a Senior Government Relations Counsel in the Washington, D.C. office of Ogletree Deakins. Jim was previously the Director for Labor Law Policy at the U.S. Chamber of Commerce where he focused on legislation, regulations, and policy decisions that impact the workplace. This included activity concerning the National Labor Relations Board, the Department of Labor, the Equal Employment Opportunity Commission, as well as international labor issues.

Prior to joining the Chamber, Jim was an associate at a national law firm where he advised employers concerning their legal obligations arising under federal laws such as the National Labor Relations Act, the Fair Labor Standards Act, Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act and the Worker Adjustment Retraining Notification Act.  Jim also assisted in conducting collective bargaining negotiations and drafting employee handbooks on behalf of clients.

Jim was also a staff attorney at the National Right to Work Legal Defense Foundation (NRTW) where he advised clients concerning violations of their rights due to compulsory unionism arrangements. At NRTW, Jim represented his clients before federal courts, the NLRB, and various local public sector employment agencies.

Jim is a graduate of Boston College Law School in Newton, Massachusetts and James Madison University in Harrisonburg, Virginia.