The NLRB Has a New Member, but Its Transformation Is Not yet Complete

Leigh Ann Buziak

On Monday, September 25, 2017, in a party-line vote of 49-47, the Senate (finally) confirmed William Emanuel to fill the only remaining open seat on the National Labor Relations Board for a five-year term. Mr. Emanuel joins fellow Trump appointee Marvin E. Kaplan, and, along with Chairman Philip A. Miscimarra, Republicans now control the majority on the five-member Board. Mr. Emanuel is a long-time management-side labor lawyer based in California at the law firm Littler Mendelson. Prior to his time with Littler Mendelson, Mr. Emanuel represented employers at Jones Day and Morgan, Lewis & Bockius.

Although the Board now has its full complement of members, there are more staffing issues to address, which are not likely to be settled until early 2018. The General Counsel of the Board is Obama-appointee Richard F. Griffin, Jr., whose term will expire on November 4, 2017. The NLRB’s General Counsel is a unique role in that it is a position independent from the Board, and is responsible for the investigation and prosecution of unfair labor practices cases, including the issuance of complaints, and for the supervision of NLRB field offices. Thus, in a fashion similar to a criminal prosecutor, the General Counsel largely controls the types of cases prosecuted and decided by the NLRB. In his last 30 days, Mr. Griffin is set to argue in the Supreme Court on behalf of the NLRB in the closely-watched trio of cases on the legality of workplace arbitration provisions that would bar employees from filing class actions.[1] The Trump administration appears poised to move forward with its nomination of Peter Robb for this position, who is a management-side lawyer from Vermont law firm Downs Rachlin Martin, where he has been since 1995, after working at Proskauer’s Washington D.C. office for a decade.

In addition, current Chairman Miscimarra—a frequent author of dissents on the Board during the Obama era—has announced that he will leave the Board when his term expires on December 16, 2017, setting the stage for further 2-2 ties between new appointees Messrs. Emanuel and Kaplan and Obama appointees Mark Gaston Pearce (term expires August 27, 2018) and Lauren McFerran (term expires December 16, 2019). The Trump administration has not yet announced a possible successor for this open seat.

So, the burning question: when will the thousands of years of precedent reversed by the Board during the Obama administration be flipped by in favor of employers by the new Trump Board? Short answer: not quite yet. Until the new General Counsel is in place and Chairman Miscimarra’s seat is filled, we expect that Obama-era decisions and policies will not be reversed or changed. Once they are in place, hopefully in early 2018, the transformation of the NLRB to Republican control will be complete. Then, as appropriate cases percolate up—under the oversight of the new General Counsel—the Board will have the opportunity to revisit, and perhaps reverse, precedent and issues decided during the last eight years.

[1] National Labor Relations Board v. Murphy Oil USA (No. 16-307), Epic Systems Corp. v. Lewis (No. 16-285), and Ernst & Young LLP v. Morris (No. 16-300)

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