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President Donald Trump nominated labor lawyer William J. Emanuel (R) to be a member of the National Labor Relations Board, the White House announced late June 27.
The announcement comes after Trump June 19 nominated attorney Marvin E. Kaplan (R) to fill a separate vacancy on the five-member board. If confirmed by the Senate, Emanuel and Kaplan would give the NLRB its first Republican majority in more than nine years. The new board is expected to use that advantage to reverse course on a wide range of decisions issued during the Obama administration.
Conservative legislators and business groups were quick to praise the nomination. Sen. Lamar Alexander (R-Tenn.), chairman of the Senate Health, Education, Labor and Pensions Committee, said in a statement that his committee will act promptly to confirm Emanuel.
Former NLRB Chairman William B. Gould, a Democratic appointee, told Bloomberg BNA he’s known Emanuel since the 1970s. Gould, now a professor emeritus of law at Stanford University, said he has often disagreed with Emanuel on labor law issues and considers him “deeply conservative, far to the right of center.” However, Emanuel is an experienced, “honest and well qualified” nominee who “knows the agency and the law very well,” he said.
Emanuel is a management-side practitioner and shareholder in Littler Mendelson PC in Los Angeles.
Ronald Meisburg, a Republican former board member and NLRB general counsel, agreed that Emanuel is well-qualified. Emanuel will “bring both breadth of perspective and depth of experience regarding the National Labor Relations Act” to the board, he told Bloomberg BNA.
Meisburg represents management at Hunton & Williams LLP in Washington.
The practitioners and former board members interviewed by Bloomberg BNA—Republicans and Democrats alike—acknowledged or praised Emanuel’s practical labor law experience. But Craig Becker, general counsel for the AFL-CIO and a former Democratic board member, added that lawmakers should consider how well he would transition from representing employers to deciding disputes between employees and businesses.
“What we expect is that the Senate will explore whether he can do what’s necessary to transition from being an advocate to an impartial adjudicator,” Becker said. “Rather than probe his experience and knowledge, which are both obviously considerable,” lawmakers should focus on Emanuel’s impartiality, Becker said.
Becker acknowledged that he was a private practitioner before his own appointment. “Some members have made that transition more successfully than others, so I’m simply suggesting that it’d be an appropriate avenue of inquiry,” he said.
Emanuel has been closely involved in hotly contested disputes over class action waivers in employment contracts.
The veteran attorney, along with other lawyers from Littler Mendelson, filed an amicus brief for the Coalition for a Democratic Workplace in D.R. Horton, Inc. v. NLRB. The coalition supported home-building company Horton, which persuaded the U.S. Court of Appeals for the Fifth Circuit that employers can require workers to waive their rights to class and collective actions without running afoul of federal labor law.
The NLRB has held to its position that class and collective action waivers violate the NLRA, despite the appeals court’s ruling. The U.S. Supreme Court will have an opportunity to resolve the issue within the next year.
The high court has agreed to hear NLRB v. Murphy Oil USA, Inc., in which the board followed Horton.
The Justice Department under Trump recently switched its position in the case, saying that it would no longer argue that the waivers violate workers’ right to collective action. Acting Solicitor General Jeffrey B. Wall has authorized the board to represent itself in the Supreme Court.
Emanuel has worked on two other cases on the class waiver issue that are before the high court.
In Ernst & Young LLP v. Morris and Epic Systems Corp. v. Lewis , appellate courts supported the view that the forced waivers are not valid under the NLRA and therefore do not require enforcement under the Federal Arbitration Act. Emanuel signed an amicus brief that business groups filed in both cases, repeating the argument that the NLRB’s stance on the class and collective action waivers is erroneous. The Justice Department has now agreed and filed an amicus brief in Murphy, Ernst & Young, and Epic Systems opposing the NLRB’s position on the waivers.
Emanuel earned a bachelor’s degree from Marquette University and a law degree from Georgetown University. He was admitted to the bar in 1965. Before joining Littler Mendelson, he practiced management labor law at several other firms, including Jones Day and Morgan, Lewis & Bockius.
Emanuel is a member of the College of Labor and Employment Lawyers and has written extensively on NLRB issues for Littler Mendelson. He has published law journal and law review articles on the bargaining obligation of successor employers under the NLRA and the rights of union organizers to enter private property, among other issues.
According to his Littler Mendelson biography, Emanuel was a member of a management advisory panel of an NLRB advisory committee on agency procedure in the 1990s. He’s also written and co-written numerous amicus briefs for national business organizations, including the Employers Group and the Coalition for a Democratic Workplace.
Rep. Virginia Foxx (R-N.C.), chairwoman of the House Education and the Workforce Committee and Rep. Tim Walberg (R-Mich.), chairman of the Subcommittee on Health, Employment, Labor, and Pensions, said Emanuel and Kaplan “have what it takes to return the board to its role as the neutral arbiter Congress intended.”
Employers faced a “crushing regulatory burden” during the Obama administration, but they will now “benefit from a more balanced approach in labor relations,” National Retail Federation’s Senior Vice President for Government Relations David French said in a statement.
Marshall B. Babson, a Democratic member of the board from 1985 to 1988, worked with Emanuel at Jones Day and is now special counsel at Seyfath Shaw LLP. He called his former colleague a gentleman and also agreed that Emanuel is an extremely experienced labor law practitioner.
Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.
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