On Monday, September 25, 2017, the Senate confirmed, in a 49-47 vote, the appointment of longtime management-side attorney William J. Emanuel to the National Labor Relations Board. This confirmation fully staffs the five-member Board and gives Republicans a majority on the panel for the first time since the George W. Bush administration. Mr. Emanuel has represented employers in all facets of traditional labor and his appointment will help bring back a much needed balance to what is supposed to be an impartial government agency.
But, for those who think Mr. Emanuel’s confirmation, along with fellow Trump appointee Marvin Kaplan’s confirmation, will immediately rectify the pro-union policies enacted under the Obama administration should think again. As noted in a previous blog post, this Republican majority will be short lived as Board Chairman Philip A. Miscimarra will step down once his term expires on December 16, 2017. Chairman Miscimarra has repeatedly authored highly critical dissents in labor-friendly decisions handed down by the Obama Board and his absence will once again leave the Trump administration with another Board vacancy to fill. In fact, until President Trump nominates a replacement, and thereafter the Senate confirms him or her, the Board will likely be deadlocked at 2-to-2 on various critical issues that come before them.
Still, Chairman Miscimarra’s numerous dissents will serve as a useful road map to future Republican Boards in overturning a bevy of pro-union decisions issued by the Obama Board. Notable dissents by Chairman Miscimarra include his opposition to the expansion of the joint-employer doctrine in Browning Ferris and his 2016 William Beaumont dissent wherein he proposed abandoning the Lutheran Heritage standard (in part renders work rules unlawful if employees “would reasonably construe” them to prohibit protected activities under Section 7 of the Act) and adopting a balancing approach when evaluating workplace rules that take employer justifications into account. Other significant policies that are on the chopping block once a Republican-majority Board is once again in place include the ‘ambush’ or ‘quickie’ election rule and whether graduate students at private universities are employees under the Act and thus allowed to unionize (currently they are).
President Trump also recently nominated Peter B. Robb, a management-side labor and employment attorney who has been critical of policies enacted under the Obama administration, to replace current General Counsel Richard Griffin when his term expires in November 2017.
In short, although we are getting closer to restoring the Board to a neutral government agency, employers will have to wait until further Senate confirmations to start overturning the numerous pro-union decisions made over the past several years