Category: Labor Law

MIke Stoker NLRB

Mike Stoker for NLRB?

In an earlier post I noted that John Ring‘s name had surfaced as a potential replacement for NLRB Chairman Philip Miscimarra. Bloomberg BNA, which first reported the interest in Ring, now raises California attorney Mike Stoker as another candidate.

Unlike Ring, Stoker is not a full-time labor and employment attorney. Rather, his experience spans various business, land use, and governmental matters. According to the website for the State Bar of California, his law license is currently inactive but eligible to be activated at his initiative.

Current NLRB

Republican attorneys Marvin Kaplan and William Emanuel recently joined the Labor Board following Senate confirmation in August and September respectively. They give the NLRB a 3-2 Republican majority for the first time since 2007. However, current National Labor Relations Board Chairman Philip Miscimarra has announced he will not accept a new term when his expires in December.

The terms of Democrat Members Mark Gaston Pearce and Lauren McFerran don’t expire until August 27, 2018 and December 16, 2019, respectively.

Who Is Mike Stoker?

Mike Stoker has extensive government experience in California. From 1995 to 2001 he served as Chairman of the California Agricultural Labor Relations Board. Stoker’s public service extends well beyond the field of labor relations. He served as Deputy Secretary of State from 2001 to 2002. More recently, he was a Republican candidate for the California State Assembly in 2010 and the State Senate in 2012.

Stoker has also held chairman positions with the Santa Barbara Air Pollution Control District, Santa Barbara Association of Governments, and Santa Barbara County Water Agency and Flood Control board. He has also served on the Agricultural Advisory Board to the California Superintendent of Public Instruction and on the Southern California Hazardous Waste Management Board.

This background may appeal to Trump’s administration in filling not only Miscimarra’s seat, but also his Chairman position.

Stoker is an Eagle Scout with a long resume of non-profit board service. He is on the Board of Trustees of the Southern California Institute of Law. He has taught land use, real property, and government law.

In 1992 Governing Magazine named Stoker the “Most Valuable Public Official in County Government in America.”

He received his Bachelor’s Degree from the University of California, Berkeley and his law degree from Loyola Law School in Los Angeles.

Timeline for Nomination

So far, the White House has not officially commented on any candidates to replace Chairman Miscimarra. However, it is likely that President Trump will attempt to avoid a prolonged four member NLRB. With a 2-2 partisan split, the Board would not be able to decide cases featuring a political divide. This would frustrate the Republican administration’s efforts to overcome nearly a decade of pro-labor decisions from Obama-era Board.

Thus, Trump will likely put forward a candidate for confirmation before the end of the year.

William Emanuel

William Emanuel: New NLRB Member

On September 25, 2017, the U.S. Senate confirmed veteran management-side labor attorney William Emanuel as the fifth member of the National Labor Relations Board (NLRB). Emanuel, who has practiced labor law for more than four decades, gives the Board a 3-2 Republican majority.

This is the first time Republicans have controlled the Board since 2007.

William Emanuel’s Background

William Emanuel received his Bachelor’s Degree from Marquette University and his law degree from Georgetown University. He is a fellow in the College of Labor and Employment Lawyers and a member of the Federalist Society.

Emanuel has most recently practiced law with Littler Mendelson P.C. in Los Angeles. Before joining Littler, he also practiced with Jones Day, Morgan Lewis & Bockius LLP, and Musick Peeler & Garrett LLP.

He has served as a contributing editor of The Developing Labor Law, which is a leading treatise on the National Labor Relations Act (NLRA).

In his confirmation hearing, Emanuel noted:

“In addition to my professional experience in the field of labor law, I also understand the workplace from a practical standpoint. During my college and high school years, I worked as a railroad switchman, brewery worker, construction worker, bartender, grocery clerk, and in several other jobs.”

Opposition to Appointment

The Senate confirmed Emanuel by a 49-47 party-line vote.

As with the recent confirmation of NLRB Member Marvin Kaplan, Democrats opposed Emanuel as anti-workers. Just before the vote, Sen. Elizabeth Warren, D-Mass., tweeted: “A man who spent 40 yrs union busting has no business on the NLRB.”

Pro-labor groups, including major labor unions, also opposed Emanuel’s confirmation. In a July 18, 2017 letter to the Senate, the AFL-CIO’s Government Affairs Department wrote:

“Emanuel has exclusively represented employers, most recently at the notorious union-busting law firm Littler Mendelson. He confirmed at his confirmation hearing that he has never represented a worker or union in an employment matter–not even in pro bono work. . . . Neither [Emanuel nor Kaplan] said anything at the confirmation hearing to give working people any confidence that they would vigorously enforce the NLRA consistent with the law’s purpose of protecting workers’ right to organize and promoting collective bargaining.”

On the other hand, pro-business groups welcome Emanuel joining the Board. Sean P. Redmond, Executive Director of the U.S. Chamber of Commerce’s Workforce Freedom Initiative stated, “Now that the NLRB has a new majority that is unlikely to be as slanted toward organized labor, the Board will have plenty of work to do to restore balance to labor law.”

Expected Impact of Emanuel’s Confirmation

There is every reason to believe that both William Emanuel and Marvin Kaplan will adhere to traditional Republican principles on key labor issues. This will ultimately lead to reversal of significant Obama-era NLRB decisions affecting millions of employers and employees. However, because the NLRB members make policy by adjudicating cases brought before them rather than rulemaking, the policy shifts will not be immediate.

Moreover, there are still two positions that President Trump must fill before the NLRB fully transitions.

General Counsel Richard Griffin, a holdover Obama appointee, will leave office when his term expires at the beginning of November. Trump has nominated management-side labor attorney Peter Robb to replace Griffin.

In addition, NLRB Chair Phillip Miscimarra’s term will end in December. He has announced that he will not accept another term. President Trump has not publicly named a candidate for that position. However, early reports suggest that attorney John Ring may be the frontrunner for the Board position. Trump will choose between Emanuel, Kaplan, and Miscimarra’s replacement to serve as the Board’s new Chair.

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Peter Robb

Peter Robb Is Trump’s Pick as NLRB General Counsel

On September 15, 2017, the White House announced that President Donald Trump would nominate labor attorney Peter Robb as the next General Counsel of the National Labor Relations Board (NLRB). If the Senate confirms Robb, he will replace current General Counsel Richard Griffin. Griffin’s term expires on October 31, 2017.

General Counsel’s Role

The President appoints the General Counsel to a 4-year term. The GC operates independently from the 5-member National Labor Relations Board. The position is responsible for investigating and prosecuting unfair labor practice cases. The General Counsel also oversees the NLRB field offices.

Peter Robb

Peter B. Robb practices labor and employment law with Downs Rachlin Martin PLLC. He served as chief counsel to NLRB Member Robert P. Hunter (R) in the 1980s. He had previously served as NLRB field attorney and a supervisory attorney with the Federal Labor Relations Authority.

Robb received his B.A. from Georgetown University. He received his J.D. from the University of Maryland School of Law, where he was an editor of the Maryland Law Forum.

Before joining Downs Rachlin Martin, Robb practiced with Proskauer Rose LLP for approximately 10 years.

Also Considered

G. Roger King, was an apparent early front-runner for the General Counsel position. However, he reportedly dropped out of consideration in July.

King is a former Jones Day attorney, who now works for McGuiness & Yager LLP and the HR Policy Association.

Remaining NLRB Vacancies

President Trump has already nominated experienced labor attorney William Emanuel to fill a current Board member vacancy on the NLRB. The Senate will likely confirm Emanuel to join the Board in the near future.

NLRB Chairman Philip Miscimarra has announced he will not accept a new term when his expires in December. Bloomberg BNA has reported that Morgan, Lewis & Bockius LLP partner John Ring is the leading candidate for this position.

Impact of NLRB Transition

During the Obama administration, Griffin and his predecessor Lafe Solomon aggressively prosecuted employers. Combined with the Democrat-majority Board, they expanded employee and union rights in many areas.

Experts expect the NLRB will be more employer-friendly under President Trump. Sign up for my email newsletter to receive more updates about NLRB developments.