July 3, 2017
By Steven Wishnia
Washington, DC – Donald Trump’s pick to fill the final vacant seat on the National Labor Relations Board is a longtime lawyer for a union-busting firm.
William J. Emanuel, who Trump nominated June 27, is a partner in the Los Angeles office of Littler Mendelson, which bills itself as the world’s “largest global employment and labor law practice,” with more than 1,300 attorneys in over 75 offices worldwide. It says it serves employers as “a strong counterpoint to the world’s most powerful labor organizations.” It offers them advice on strategies for “lawful union avoidance,” such as how to “detect early warning signs of organizing activities, and minimize the risk of organizing campaigns,” and on countering the broader union movement.
The 75-year-old Emanuel, it says, has “extensive experience representing employers in traditional labor matters, including NLRB cases, collective bargaining, labor arbitrations, union election campaigns, strikes and picket lines, and litigation concerning union access to the private property of employers.” He is also a member of the right-wing legal organization the Federalist Society.
The board now has a 2-1 Democratic majority. If the Senate confirms Emanuel and Marvin Kaplan, who Trump nominated June 20, Republicans would have a 3-2 advantage.
That prospect is eagerly anticipated by those who would like to see the NLRB reverse its Obama-era decisions, such as speeding up the schedule for elections to establish a union in a workplace, letting specific groups of workers organize as “micro-units,” and holding that companies can be deemed “joint employers” responsible for workers hired by their brand’s franchisees or through temporary staffing agencies.
Emanuel and Kaplan would “effectively end Big Labor’s stranglehold over the NLRB,” Mark Mix, president of the National Right to Work Committee, wrote in a June 29 fundraising letter. “In order to reverse and repair eight years of damage wrought by the Obama-Big Labor NLRB, President Trump’s nominees need to be confirmed right away.”
“Expect the Board to revisit and, perhaps, reverse its Obama-era rulings on class action waivers, joint employer, temporary workers, quickie elections, expansion of protected concerted activity (e.g., its impact on workplace policies), definition of appropriate bargaining units, the status of college/university faculty and student athletes, among others,” the union-busting law firm Jackson Lewis noted on its blog.
Emanuel has filed amicus briefs in three cases challenging the NLRB’s ruling that it’s illegal for employers to require workers to sign compulsory-arbitration agreements, which prohibit them from participating in class-action or collective-action lawsuits related to their job. The board ruled that class-action suits are part of protected collective conduct by workers, and that there is an “implicit threat” that workers who won’t sign away those rights “will be fired or not hired.” Emanuel argued that the agreements are not coercive if they contain a clause that lets employees opt out.
The Supreme Court will rule on that issue in another case, NLRB v. Murphy Oil USA, next session. The Trump administration filed court papers June 16 saying it disagreed with the NLRB.
“Litigation concerning union access to the private property of employers” translates as employers’ ability to bar picketing or union organizers for trespassing. In 2007-08, after the Ralphs supermarket chain was denied an injunction against the United Food and Commercial Workers picketing on the walkway leading to a nonunion store in Sacramento—under a 1970s California law that says police can’t interfere with picketing in labor disputes except in cases of unlawful conduct more serious than trespassing—Emanuel represented the company in a challenge to that the law. He argued that it was discriminatory because it gave labor picketing privileges other kinds of protests didn’t have, that it amounted to the state unlawfully “providing assistance to a union in a labor dispute… through selective application of state laws,” and that it violated property rights.
The California Supreme Court disagreed. In December 2012, it held that the state law protected peaceful activity “to promote the rights of workers to engage in concerted activities for the purpose of collective bargaining.” The federal National Labor Relations Act makes it illegal for an employer to interfere with employees‘ rights to form or join a union, it said and that provision “has long been construed to protect an employee‘s right to speak for or against a union on the employer‘s premises.” Prohibiting picketing on the walkway, it added, would “deprive the union of the opportunity to conduct its picketing at the most effective point of persuasion” The U.S. Supreme Court declined to review that decision in 2013.
Emanuel has also written several amicus briefs, including one supporting compulsory arbitration, for the Coalition for Workplace Democracy, an organization formed in 2005 to oppose card-check union elections. It includes the U.S. Chamber of Commerce and dozens of its local chapters; the nonunion-construction trade group Associated Builders & Contractors and more than 80 of its state and local chapters; the National Federation of Independent Business; and the Koch brothers’ front group Americans for Prosperity.
The coalition identifies three Obama-era NLRB rules it wants to see reversed. It says the board’s ruling speeding up votes on unionization creates “ambush elections” and limits “employees’ access to information on the consequences of unionization,” and that allowing micro-unions enables “organized labor to gerrymander units and disenfranchise employees that oppose unionization.” It also wants to rescind the joint-employer rule established in 2015.
The Chamber of Commerce has similar priorities. Under Obama, its Workforce Freedom Initiative front group says, the NLRB “aggressively carried out a one-sided agenda aimed at growing labor unions at any cost.” It says the decisions most important to reverse are those on “micro-unions,” compulsory-arbitration agreements, the joint-employer standard, and “ambush elections.”
“The new administration, Congress, and NLRB have a fresh opportunity to curb the one-sided regulatory overreach by the Obama-era Board,” the group says.
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