Dive Brief:
- President Donald Trump filled the five-member National Labor Relations Board (NLRB) by picking William Emanuel, a Los Angeles-based attorney and a Littler Mendelson shareholder, for the last vacant seat, reports the National Law Journal (NLJ). Emanuel joins Trump's other picks, Chairman Philip Miscimarra and Marvin Kaplan, an Occupational Safety and Health Administration division lawyer. Emanuel and Kaplan are awaiting Senate confirmation.
- Democrats Mark Gaston Pearce and Lauren M. McFerran are the minority board members. Now that Republicans hold majority seats, more pro-business decisions are expected, says the NLJ. Also, Trump may select the board's next general counsel to replace Richard Griffin, whose term expires in November.
- Board members will likely consider or revisit high-visibility rulings on issues such as joint-employer liability and whether graduate students should be considered employees with collective bargaining rights.
Dive Insight:
Emanuel and Kaplan have extensive experience in labor law. At Littler Mendelson, a national labor and employment firm, Emanuel advised employers on traditional labor law issues, including unions' access to personal property. Kaplan was the GOP's counsel on workforce policy for the House Committee on Education and the Workforce. As business advocates, both men are likely to roll back "pro-labor" Obama administration rulings if confirmed.
Employers will have to wait to see how the D.C. Court of Appeals and the Supreme Court settle two NLRB-backed landmark cases: joint-employer liability and class-action waivers in arbitration agreements, respectively. A court decision before Emanuel and Kaplan are confirmed and Griffin's term expires could stall the board's majority position to move forward with key pro-business measures. Business groups have criticized the board for continuing to take a pro-labor stand on the issues, despite the GOP takeover of the House, Senate and White House.
The Retail Industry Leaders Association (RILA) publicly praised Kaplan and Emanuel's nominations, calling previous board decisions "misguided" and a threat to retail employees' upward mobility. "It is critical that the Board is made whole so it can begin the important work to interpret the law in a way that supports innovation, growth, and opportunity," said Evan Armstrong, RILA's VP of government affairs.
The National Retail Federation (NFR) stands with RILA, stating that “much of this uncertainty has stemmed from the NLRB’s pursuit of an activist agenda that consistently put the interests of labor unions before the rights of employers and employees."
