Emanuel Fills Last NLRB Seat

By Edwin S. Hopson

On September 26, 2017, William J. Emanuel, a Republican,  was sworn in as a Member of the National Labor Relations Board.  Emanuel’s term will end August 27, 2021. The Senate had confirmed his nomination by a vote of 49-47 after Democrats filibustered his appointment.

Prior to his appointment, Emanuel was a shareholder with Littler Mendelson, P.C., a law firm representing management in labor and employment matters.  He had also practiced labor law with several other firms.

With this new Member, the NLRB is once again at full strength – three Republicans and two Democrats.

Supreme Court Considers Validity of Employment Contracts Prohibiting Class or Collective Action

By Douglas L. McSwain

On October 2, 2017, the Supreme Court of the United States heard three combined cases raising an important legal question that likely will affect innumerable employment contracts used in this country.  The Court heard Epic Systems Corp. v. Lewis, Ernst & Young, LLP v. Morris and National Labor Relations Board (NLRB) v. Murphy Oil (USA).  The Court’s ruling in these three cases will determine the validity of arbitration clauses that waive or prohibit the employee from pursuing collective, class or joint actions in court or in arbitration proceedings.

The lower courts have differed on this question, and the oral argument before the Supreme Court indicates the Justices are likely to split in what could turn out to be a closely decided ruling, perhaps with a thin majority of Justices (i.e., potentially a 5-4 decision).  No one knows for sure how the case will be finally decided by the Supreme Court, and predictions about how the Justices will rule, at this juncture, are premature at best.  The questioning that occurred during oral argument seems to suggest

Senate Confirms Republican Member to NLRB

By Edwin S. Hopson

On August 2, 2017, just prior to the August recess, the U.S. Senate confirmed the nomination of Marvin Kaplan by a vote of 50 to 48 to be a Member of the National Labor Relations Board.  The Senate, however, did not vote on a second Trump nominee to the Board, William Emanuel.  The vote on the second nominee is expected in September.  With Kaplan’s confirmation, the five member Board now consists of two Republicans, two Democrats and one vacancy.  Thus, it is unlikely that there will be any more ground-breaking new precedent in favor of unions for some time to come.  It has been nine years since the Republicans had a majority of Board Members.

The term of the Democrat General Counsel to the Board expires in early November of this year.  He will be replaced by a Republican yet to be named.

Trump’s Recent NLRB Picks (if Confirmed) Projected to Overturn Controversial Obama-Era Rulings

By Sharon L. Gold

On Tuesday, June 27, 2017, President Trump picked William Emanuel, 75, to fill one of the two vacancies on the National Labor Relations Board.  The NLRB is currently controlled by Democrats, with a 2-1 majority.  When there are no vacancies, the Board is filled with three members from the President’s party and two from the opposing party.

Emanuel was an employment lawyer at an employer-friendly law firm in Los Angeles.  He has represented trade groups and employers before the NLRB for many years.

Trump has also nominated Republican Marvin Kaplan for

U.S. Supreme Court Finds that Lafe Solomon’s Service as Acting NLRB General Counsel Violated the FVRA

By Courtney Samford

On March 21, 2017, the U.S. Supreme Court finally resolved the issue of Lafe Solomon’s role as Acting General Counsel of the NLRB in National Labor Relations Board v. SW General, Inc.  In an opinion authored by Chief Justice Roberts, the Supreme Court held that Solomon’s position as Acting General Counsel violated The Federal Vacancies Reform Act of 1998 (“FVRA”) once he was nominated by then President Obama for the permanent position.  Generally, Article II of the U.S. Constitution requires the President to obtain Senate approval to appoint “Officers of the United States,” but the FVRA allows the President to appoint a limited class of individuals to serve as acting officers on a temporary basis until a replacement can be confirmed by the Senate.  Pursuant to the FVRA, certain individuals who are nominated for a permanent position may not serve as an acting officer.

In June 2010, a vacancy arose in the general counsel position for the NLRB.  Then President Obama appointed Solomon to serve as Acting General Counsel on a temporary basis, and several months later, nominated him to serve as the General Counsel.  Solomon’s temporary position did not require Senate confirmation, but the permanent position did.  However, the Senate refused to act on Solomon’s nomination, and Obama was forced to

New NLRB Election Statistics Reveal Union Weakness

By George J. Miller

It has been one year since the National Labor Relations Board’s so-called “ambush” or “quickie” election rule went into effect. According to the Board, the rule was “designed to remove unnecessary barriers to the fair and expeditious resolution of representation cases” and “streamline” the process.  In simpler terms, it was intended to speed up the process, something which organized labor and its supporters wanted so that employers would have less time to campaign before the election or, in the jaundiced view of organized labor, less time to intimidate voters.  Organized labor contended that the old process favored employers and was unfair, and that the new rule was needed to “level the playing field.”

Last week, the NLRB released data about the effects of the new rule.  As expected, the process is much faster.  In cases in which unions filed the election petition, the median number of days between the date of the filing of the election petition and the date of the election fell from 38 days in the preceding year (April 2014 to April 2015) to 24 days in the past year (April 2015 to April 2016).  This is a 37% reduction.  In cases in which the unions and employers entered into

McDonald’s Loses Another Round at the NLRB

By George J. Miller

On March 17^th, the National Labor Relations Board (NLRB) issued another decision unfavorable to McDonald’s USA and certain McDonald’s franchisees. This was the Board’s fifth decision in this massive case, in which the unions and the Board’s General Counsel are trying to prove that McDonald’s and its franchisees are a joint employer of the franchisees’ employees, and McDonald’s is therefore responsible for any unfair labor practices of its franchisees. In the latest development, a two member majority of a three member NLRB panel agreed with an administrative law judge’s decision to severely limit the scope of documents which McDonald’s could subpoena from the unions and other non-party organizations which had assisted the unions in their efforts against McDonald’s.

The labor unions, which are the charging parties, are the Service Employees International Union (SEIU), Fast Food Workers Committee, Pennsylvania Workers Organizing Committee (a project of the Fast Food Workers Committee), Workers Organizing Committee of Chicago, Los Angeles Organizing Committee, and Western Workers Organizing Committee.

The non-party organizations which received McDonald’s subpoenas are: Mintz Group, LLC, and LR Hodges & Associates, Ltd., both private investigative firms hired by the SEIU’s law firm; Berlin Rosen, Ltd., a firm specializing in public affairs and strategic communications; and New York Communities for Change, Inc., a nonprofit advocacy organization which