The National Labor Relations Board (“NLRB” or “Board”) now has a full complement of five members with a Republican majority for the first time in roughly a decade. This follows from the September 27 swearing in of Republican William J. Emanuel as a Board member for a term ending on August 27, 2021. Emanuel is the second Trump nominee to join the Board, following Republican Marvin E. Kaplan’s swearing in on August 10 for a term ending on August 27, 2020.
Emanuel is a very experienced management-side labor lawyer. He was most recently a shareholder in the Los Angeles office of Littler Mendelson and has practiced with several other prominent law firms.
The latest appointments technically provide the opportunity for the Board to reverse decisions and rules issued by the Obama Board that are considered by many to reflect hostility toward employers or at least a lack of understanding of business operations. However, this can take some time, as it can take a while for new Board members to get up to speed enough to address key issues and, even more so, for key issues to make their way up to the Board. Moreover, the term of the third Republican on the Board, Chairman Philip A. Miscimarra, is set to expire on December 16. Miscimarra has announced that he is not interested in re-appointment, so a new member must be nominated and confirmed by the Senate. Until that happens, the Board may have a period of an even Republican/Democrat split minimizing the likelihood of any significant changes in position.
Furthermore, Obama appointee Richard F. Griffin, Jr. remains the NLRB’s general counsel until his term expires on or about November 4. Pres. Trump recently nominated Peter B. Robb to succeed Griffin. Senate confirmation is pending. Robb is a management-side labor lawyer with the law firm Downs Rachlin Marin in Vermont. Responsible for investigating and prosecuting unfair labor practice cases, the general counsel has a great deal of power to shape national labor policy.
For now, AGC members should continue to follow the decision and guidance issued by the prior Board unless advised otherwise by competent legal counsel. For more information about federal labor law, visit AGC’s Labor & HR Topical Resources page. (Be sure to login as an AGC member to see all resources.) For labor lawyer referrals, visit the AGC Labor and Employment Law Council’s member directory.