Trump Labor Board May Be Hobbled For Years

Last fall, Trump appointee William Emanuel recused himself from 98 cases now before the NLRB.

Most of Obama Appointees’ Anti-Right to Work Legacy Safe For Now?

After the U.S. Senate confirmed President Trump’s nominations of Marvin Kaplan and William Emanuel to the National Labor Relations Board (NLRB) last year, Right to Work supporters were hopeful that the reign of Barack Obama-appointed radicals over this powerful agency had finally ended.

Unfortunately, although Trump appointees did help roll back a handful of the Obama NLRB’s outrageous pro-union monopoly rewrites of federal labor law in December, it now appears most of the Obama board’s anti-Right to Work legacy could continue to be U.S. policy for some time to come.

One reason why this is sadly the case is that, prior to his NLRB appointment, Mr. Emanuel was an attorney for the major employment law firm Littler Mendelson, which has legally represented more than 160 companies that have recently been involved in cases within the NLRB’s jurisdiction.

Under longstanding federal ethics rules, for his first two years on the board Mr. Emanuel will have to recuse himself from all cases involving companies that were Littler Mendelson clients while he worked there, even if they were not his own clients.

Big Labor Radicals Unlikely To Lose Controversial NLRB Votes at This Time

National Right to Work Committee Vice President Matthew Leen recalled that, as a consequence of his Littler Mendelson ties, late last November Mr. Emanuel announced he would recuse himself from 98 cases currently before the board.

“A few weeks later,” Mr. Leen added, “Philip Miscimarra, the sole remaining Obama NLRB appointee who did not display an intense bias in favor of expanding union bosses’ special coercive privileges, left the board as his term expired.

“Since the President had yet to nominate any replacement for Mr. Miscimarra when the latter left the board on December 16, what remained was a four-member panel.

“It was made up of two Trump appointees publicly committed to enforcing federal labor statutes as they are written and two unabashed proponents of compulsory unionism with established track records of ‘reinterpreting’ federal labor law to expand union bosses’ special privileges.”

As this Newsletter edition goes to press in early February, the Miscimarra seat remains vacant.

Until this seat is filled, if the full board considers a case, as usually happens when a controversial and potentially precedent-setting issue is at stake, Big Labor radicals will be virtually guaranteed a tie vote, and could have a majority if Mr. Emanuel has to recuse himself.

Latest Trump NLRB Nominee Will Also if Confirmed, Likely Often Have to Recuse Himself

While the White House was considering whom to nominate to fill the NLRB vacancy, Committee officers counseled Trump staff members not to choose for the slot another management attorney who would have to recuse himself or herself potentially from vast numbers of cases involving clients of the attorney’s former employer.

This advice went unheeded.

On January 12, the NLRB nomination of John Ring, a partner at the employment law firm Morgan, Lewis and Bockius, whose client list is even longer than Littler Mendelson’s, was announced to the press.

“If John Ring’s nomination is soon confirmed, as expected, then for the next year and a half two of the three NLRB members who aren’t profoundly biased in favor of forced unionism may have to recuse themselves from multiple cases,” said Mr. Leen.

“Recusals could make it virtually impossible, until late 2019 or even 2020, for the board to revisit any more of the dozens of radical, precedent-smashing decisions issued by the Obama NLRB.”

Legislative Fixes Needed

“The strong possibility that Chairman Marvin Kaplan’s NLRB will be hobbled until the next presidential election year is one of several reasons why the Committee is aggressively lobbying Congress to adopt measures that would overturn Obama NLRB power grabs legislatively by amending the National Labor Relations Act,” Mr. Leen added.

“Regulatory procedures that enable workers to vote to rid themselves of an unwanted union, though insufficiently protective of individual rights, remain absolutely vital today. The availability of these procedures cannot remain contingent on who happens to be sitting on the NLRB at any particular time.”

(Click here to download the March 2018 National Right to Work Newsletter)