Emanuel OK’d for Labor Board, Giving Republicans 3-2 Edge

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By Tyrone Richardson and Hassan A. Kanu

The Senate Sept. 25 confirmed management-side attorney William Emanuel to the federal labor board, giving it a Republican majority for the first time in nearly a decade.

The term of the current Republican board chairman, Philip Miscimarra (R), will expire in December. President Donald Trump will then have to nominate and have confirmed a new GOP board member for the agency to truly begin an expected reversal of many Obama-era policies and decisions.

The political shift at the board will set up the Republican majority to reconsider various Obama-era decisions, including those expanding joint employer liability for affiliated businesses; imposing limitations on how employers can use employment contracts to block workers’ class actions; and reducing the amount of time necessary to form a union.

The Senate voted 49-47 along party lines for Emanuel, who previously worked at Littler Mendelson in Los Angeles. Senate Majority Leader Mitch McConnell (R-Ky.) urged his colleagues to confirm the nominee, saying Emanuel is an experienced and impressive candidate.

Emanuel’s confirmation to the five-member National Labor Relations Board comes on the heels of the confirmation of Marvin Kaplan (R) in August. Kaplan was the second nomination to the NLRB made by Trump.

The board, which is a statutorily nonpartisan agency, moved toward “partisan activism” favoring unions under President Barack Obama, McConnell said moments before the floor vote. “Confirming the nominee before us today, William Emanuel, is sure to mark a turning point in the NLRB’s direction,” he said.

It’s not yet clear which issues would be coming up first. Miscimarra earlier this month said he expects a flurry of decisions on pending cases in the final three months of his term.

Democratic lawmakers continued to oppose Emanuel’s nomination.

“I’m deeply concerned that President Trump’s nominee, Mr. Emanuel, will use his place on the board to advocate for corporations and special interests,” Sen. Patty Murray (D-Wash.), ranking member of the Senate Health, Education, Labor and Pensions Committee, said in a Sept. 25 speech before the vote.

A practitioner “who’s never once represented workers” in four decades has “no business at the helm of an agency whose single mission is to encourage collective bargaining,” Sen. Elizabeth Warren (D-Mass.) said.

Swift NLRB Rulings to Come?

Wilma Liebman (D), who served as chairwoman of the agency under Obama, told Bloomberg BNA Sept. 25 that it often “takes time” for new members to get up to speed on issues.

“There is no doubt that with this new majority, they will seek to overturn some precedent,” she said. “It takes time for a new member to get up to speed and agree on a decision.”

Created in 1935, the NLRB is tasked with enforcing the National Labor Relations Act. The law protects the right of employees to engage in collective action to improve wages, benefits, and other terms of employment.

McConnell lauded Emanuel’s nomination.

“His experience in labor law is deep, his credentials are impressive, and his confirmation will finally allow the NLRB to return it to its important work with a full slate of Senate-confirmed board members—for the first time since 2015,” he said.

Democrats Voice Opposition to Emanuel

The liberal faction of the HELP committee has called Trump’s appointments in the area anti-union and anti-worker.

“As a corporate lawyer fighting on the side of management, Mr. Emanuel has spent decades repeatedly undermining workers and their efforts to unionize,” Murray said in her speech. “It is the core mission of the NLRB to encourage collective bargaining. And, given his long anti-worker track record, I am afraid that workers’ fundamental rights are not safe in Mr. Emanuel’s hands.”

Trump has also nominated Vermont lawyer Peter Robb (R) to replace general counsel Richard Griffin (D), whose term will expire next month. That nomination has also generated somecontroversy.

Emanuel’s confirmation sets the clock for Miscimarra to leave his mark on the NLRB before he retires. Historically, exiting chairs have sought key rulings, but that could be a problem, said Liebman, now a visiting distinguished scholar at the Rutgers School of Management and Labor Relations.

“When a board member’s term is coming to an end, they try to issue rulings on big-ticket cases, and traditionally those are on cases where they are split,” she said. “The question is whether Emanuel and Kaplan are up to speed at what might be a different outcome in those cases with the time remaining. It’s not clear to me.”

To contact the reporters on this story: Tyrone Richardson in Washington at trichardson@bna.com; Hassan A. Kanu in Washington at hkanu@bna.com

To contact the editor responsible for this story: Chris Opfer at copfer@bna.com

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