Republicans hold a majority on NLRB for first time in 9 years

The Senate confirmed William Emanuel to the federal National Labor Relations Board on Sept. 25, 2017, putting Republicans in control of the NLRB for the first time in nearly a decade. 

Emanuel, the second of President Donald Trump’s nominees to the NLRB, was confirmed in a party-line vote of 49-47. His confirmation to the five-member NLRB comes after the recent confirmation of Republican Marvin Kaplan. The NLRB’s current chair, Philip Miscimarra, was appointed by President Barack Obama in 2013 and was elevated to chair in April by President Trump. Miscimarra recently announced that he will not seek a second term when his expires on Dec. 16, 2017. Consequently, President Trump is expected to nominate another Republican to fill Miscimarra’s seat. (John Ring from the District of Columbia has been rumored to be under consideration for this position).

President Trump will also have the opportunity to appoint a general counsel to the NLRB when Democrat Richard Griffin’s term expires on Nov. 4, 2017 – Vermont management lawyer Peter Robb is expected to take over that role. The NLRB’s general counsel acts as a prosecutor with unreviewable discretion on the issuance or refusal to issue unfair labor practice charges and is in charge of directing the NLRB’s regional offices and their lawyers. The general counsel’s role is, in effect, to be the gatekeeper for the board, controlling the cases that reach the board for decision.

BACKGROUND ON THE NLRB

The NLRB was created in 1935 to act as a neutral arbiter in labor disputes. The NLRB in recent years has expanded joint employer liability for affiliated businesses, imposed limitations on how employers can use employment contracts to block workers’ class actions, and reduced the amount of time necessary to form a union.

For decades, NLRB precedent regarding who constitutes a joint employer required an employer to exercise “direct and immediate” control over employment matters of another company’s workforce. This encompasses one employer being directly involved in hiring, firing, promotion, and supervision of another business. In August 2015, the NLRB imposed a far broader and more vague definition of joint employer, including indirect and potential control. Companies, particularly franchisors, feared that they could be held liable for violations of law at workplaces that they did not directly oversee or control. 

Emanuel’s confirmation sets the stage for the Republican majority on the NLRB to act quickly to reconsider various Obama-era decisions prior to the expiration of Miscimarra’s term. Any cases he participated in that aren’t decided before he leaves on December 16 will have to be restarted.