By Lawrence E. Dubé, Bloomberg BNA
President Donald Trump today nominated labor lawyer William J. Emanuel (R) to be a member of the National Labor Relations Board, the White House announced.
The announcement comes after Trump June 19 nominated attorney Marvin E. Kaplan (R) to fill a separate vacancy on the five-member board. If confirmed by the Senate, Emanuel and Kaplan would give the NLRB its first Republican majority in more than nine years.
The board is expected to use that advantage to reverse course on a wide range of decisions issued during the Obama administration.
Emanuel, a shareholder in Littler Mendelson PC in Los Angeles, is a management-side practitioner with extensive experience under the National Labor Relations Act and with the NLRB.
Emanuel has been closely involved in hotly contested disputes over class action waivers in employment contracts.
The veteran attorney, along with other lawyers from Littler Mendelson, filed an amicus brief for the Coalition for a Democratic Workplace in D.R. Horton, Inc. v. NLRB . The coalition supported home-building company Horton, which persuaded the U.S. Court of Appeals for the Fifth Circuit that employers can require workers to waive their rights to class and collective actions without running afoul of federal labor law.
The NLRB has held to its position that class and collective action waivers violate the NLRA, despite the appeals court’s ruling. The U.S. Supreme Court will have an opportunity to resolve the issue within the next year.
The high court agreed to hear NLRB v. Murphy Oil USA, Inc., in which the board followed Horton.
The Justice Department under Trump recently switched its position in the case, saying that it would no longer argue that the waivers violate workers’ right to collective action. Acting Solicitor General Jeffrey B. Wall has authorized the board to represent itself in the Supreme Court.
Associate General Counsel John Ferguson, who heads the NLRB’s Division of Enforcement Litigation, will now be the board’s counsel of record before the Supreme Court.
Emanuel has worked on two other cases on the class waiver issue that are before the high court.
In Ernst & Young LLP v. Morris and Epic Systems Corp. v. Lewis, appellate courts supported the view that the forced waivers are not valid under the NLRA and therefore do not require enforcement under the Federal Arbitration Act. Emanuel signed an amicus brief that business groups filed in both cases, repeating the argument that the NLRB’s stance on the class and collective action waivers is erroneous. The Justice Department has now agreed and filed an amicus brief in Murphy, Ernst & Young, and Epic Systems opposing the NLRB’s position on the waivers.
Emanuel, who earned a bachelor’s degree from Marquette University and a law degree from Georgetown University, was admitted to the bar in 1965. Before joining Littler Mendelson, he practiced management labor law at several other firms, including Jones Day and Morgan, Lewis & Bockius.
Emanuel is a member of the College of Labor and Employment Lawyers and has written extensively on NLRB issues for Littler Mendelson. He has published law journal and law review articles on the bargaining obligation of successor employers under the NLRA and the rights of union organizers to enter private property, among other issues.
According to his Littler Mendelson biography, Emanuel was a member of a management advisory panel of an NLRB advisory committee on agency procedure in the 1990s.
Emanuel has written and co-written numerous amicus briefs for national business organizations, including the Employers Group and the Coalition for a Democratic Workplace.