William Emanuel - Horton Management Law

In a memorandum dated March 31, 2021, the Acting General Counsel of the National Labor Relations Board, Peter Sung Ohr, proclaimed that the agency would enforce a key federal labor law more ardently than had his predecessor. The subject of the memo itself is telling: “Effectuation of the National Labor Relations Act Through Vigorous Enforcement of the Mutual Aid or Protection and Inherently Concerted Doctrines”. This action signals an aggressive enforcement policy against private-sector employers, whether currently unionized or not.

Legal Foundation

Section 7 of the National Labor Relations Act (NLRA) generally provides that:

Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities. . . .

This provision protects private-sector (e.g., non-governmental) employees whether they belong to a union or not. In addition to permitting unionization, Section 7 prohibits discrimination against employees who work together to improve working conditions.

Increasingly, the National Labor Relations Board has disagreed over the extent of these protections. The divide typically follows the political spectrum. Under a Democratic administration, the NLRB reads Section 7 more expansively in favor of workers. Republican administrations find the protections more limited, recognizing the inherent prerogative of business owners to control their enterprises.

Current NLRB Composition

The National Labor Relations Board “board” itself is comprised of five seats based in Washington, D.C. Each seat has a five-year term, with distinct expiration dates. As a result, control of the NLRB does not automatically shift with a change in presidential administrations.

President Biden entered office with only four of the five NLRB board seats filled. Three members are Republicans who President Donald Trump appointed. As the practice has been to have no more than three of the five seats filled by representatives of the president’s party, the fourth member is Democrat Lauren McFerran. Biden immediately named McFerran the new Chair of the NLRB, but has not yet filled the open seat. Republican William Emanuel’s term will expire on August 27, 2021. It is certain that Biden will not reappoint Emanuel at that time. Barring inability to gain Senate confirmation, both the currently vacant seat and Emanuel’s seat will be filled by Democrats. That will shift the Board to a pro-labor majority for the first time since August 2017.

The Board ultimately sets NLRB policy, primarily through adjudicating cases, but increasingly through formal rulemaking as well. However, it does not have absolute control of the NLRB’s activities. The General Counsel of the NLRB oversees the initial intake of cases and controls the prosecution of unfair labor practices. Accordingly, the GC has a pivotal function in guiding NLRB policy.

Breaking with historical practice, President Biden fired Trump’s Senate-confirmed General Counsel, Peter Robb, on his first day in office. Robb’s term wasn’t set to expire until November. Biden appointed Peter Sung Ohr as Acting GC. He has nominated Jennifer Abruzzo to fill the position on a permanent basis.

“Mutual Aid or Protection”

Reflecting a more aggressive enforcement policy, the Acting GC’s memo suggests an expansive view of what constitutes activities for employees’ “mutual aid or protection”. Indeed, he asserts, “employee advocacy can have the goal of ‘mutual aid or protection’ even when the employees have not explicitly connected their activity to workplace concerns”. In support of that conclusion, the memo references several cases decided by the NLRB when there was a Democratic majority.

According to the Acting GC, mutual aid or protection can extend to “employees’ political and social justice advocacy”. Among other examples, the memo points to “protests in response to a sudden crackdown on undocumented immigrants and the possible revival of workplace immigration raids” as conduct he would find protected by the NLRA because “the employees’ conduct . . . concerned issues within their employer’s control, like . . . willingness to hire immigrants.”

On such issues, the Acting GC effectively sets aside the views of the sitting NLRB majority: “I look forward to robustly enforcing the Act’s provisions that protect employees’ Section 7 rights with full knowledge that recent decisions issued by the current Board have restricted those protections”. The memo suggests that the NLRB will pursue cases falling in the gaps of the current majority’s reasoning regarding Section 7 rights, rather than directly rejecting it. However, there is much reason to be suspicious of that supposed distinction.

“Inherently Concerted”

After acknowledging that “[p]rotected, concerted activity . . . begins with a conversation among employees,” the Acting GC’s memo asserts that “contemplation of group action may be indicative of concerted activity, [but] it is not a required element.” He argues that certain issues “are pivotal” to employees’ common interests such that any group discussions about them are “inherently concerted,” again citing a case decided by a Democratic majority. Despite emphasizing “inherently concerted” to be a “settled doctrine,” the Acting GC concedes, “it remains better articulated as an alternative argument in cases where concert may be proven by traditional means.”

The memo further recognizes that the Board has only found discussions to be inherently concerted when they involve “certain vital categories of workplace life”. These categories primarily include wages and compensation. But the Acting GC suggests that discussions of work schedules, job security, workplace health and safety, and racial discrimination (presumably among others) may also qualify. In conclusion, the Acting GC reports that: “In the future, I will be considering these and other appropriate applications of the inherently concerted doctrine in suitable cases.”

Employers Be Warned

It is not surprising that Biden’s NLRB General Counsel will follow a more aggressive enforcement policy. Yet, it is noteworthy that the Acting GC has blatantly announced his intention to begin doing so before his permanent replacement is confirmed. He also does so under a Republican Board majority that will remain in place for several more months.

Expect the NLRB’s regional offices to pursue more cases against employers now to line them up for a new Board majority toward the end of the year. This approach will expedite the predictable shift in labor policy to favor unions and employees more than was the case under the Trump administration.

Companies should be cautious before disciplining employees for any activities that may run afoul of the aggressive enforcement policy reflected in the Acting GC’s memorandum. Management should work with experienced labor counsel to balance the risks in such scenarios.

Despite current favorable Trump-era precedents, employers might also consider reviewing their policies and procedures that may come under renewed NLRB scrutiny. Examples include social media policies, confidentiality policies, work rules, and investigation procedures. Employers facing or anticipating unionizing campaigns should prioritize such a review. Arguably-minor unfair labor practice allegations can have a significant adverse impact on businesses as fodder for organizing efforts.

Click here to download a copy of this March 31, 2021 Acting GC memorandum.

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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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Acting NLRB GC Announces Aggressive Enforcement Policy