Republicans now run the NLRB

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Today the Senate confirmed the nomination of William (Bill) Emanuel (former shareholder at Littler Mendelson where he practiced traditional labor law in the Los Angeles office) to be a Member of the National Labor Relations Board. Following the recent confirmation of Member Marvin Kaplan, this now puts the NLRB at full strength (five Members) with a 3-2 Republican majority.

Who is William Emanuel?

A graduate of Georgetown University Law School and Marquette University, he has authored several amicus curiae briefs on behalf of trade associations in cases challenging state laws that allow labor unions to enter employers' private property. He is often recognized as a Best Lawyer in America©.

Fellow in the College of Labor and Employment Lawyers

Contributing editor of the ABA's treatise The Developing Labor Law

Member of the Practice and Procedure Committee and Developing Labor Law Committee of the American Bar Association

Member and past chairman of the Labor and Employment Law Section of the Los Angeles County Bar Association

Member and past chairman of the Labor Relations Advisory Committee

Member and past chairman of the Employers Group Legal Committee.

Member of the Labor and Employment Practice Group of the Federalist Society.

He earned his JD from Georgetown University and AB from Marquette University.

More at the Littler web site.

Here's a 3:56 minutes video in which I make predictions of 10 things that will change with the Board now in control of Republicans:

 
 

Justice Department v. NLRB

When Epic Systems Corp v. Lewis (consolidated with Ernst & Young v. Morris and NLRB v. Murphy Oil) goes to oral argument at the US Supreme Court on October 2, we will have the rare treat of watching the US Solicitor General arguing in favor of the employers and the NLRB's General Counsel arguing in favor of the NLRB and the employees. The Court granted motions for divided argument today [Order], so these two government lawyers will each be sharing one-half hour of argument time with lawyers representing other parties. So, lots of lawyers.

This odd happening comes about simply because the Justice Department switched sides after the presidential election. DOJ originally filed a petition for certiorari [Petition] on behalf of the NLRB, and then later filed an amicus brief [Brief] arguing against the NLRB. [Video: 2:09 minutes]

The cases raise these issues:

Whether it's an unfair labor practice for an employer to require employees to agree not to bring a class-action or collective-action case - either in litigation or in arbitration.

Whether the Federal Arbitration Act compels enforcement of an employment arbitration agreement that prohibits employees from bringing class-action or collective-action cases.

Another odd twist is that by the end of this week the NLRB will be back in the hands of the Republicans (due to the Senate's confirmation of Republican William Emanuel today), and the new Board clearly will not support the D.R. Horton (NLRB 2012) holding that requiring employees to sign class-action waivers interferes with employees' right to engage in concerted activities. Of course, current NLRB General Counsel Richard Francis Griffin Jr. is a Democrat, and he can keep the fight going in the court system - but only until he is replaced in November by Republican Peter Robb.

For more background, see this from SCOTUSblog: Argument preview: Reconciling class waivers and the National Labor Relations Act (UPDATED).

[For a list of current employment law cases, see Supreme Court Watch.]

Peter Robb for NLRB General Counsel

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The President has nominated management-side labor lawyer Peter Robb to be the NLRB's next General Counsel – to take the place of Richard F. Griffin, Jr., whose term expires in November.

Who is Peter Robb?

  • Currently: Attorney with Downs Rachlin Martin PLLC, Brattleboro, Vermont, where his practice has covered a broad range of labor and employment law.
  • Former special labor counsel to Proskauer Rose.
  • Former Chief counsel to NLRB Member Robert Hunter
  • Georgetown University, B.A., 1970, in economics.
  • University of Maryland School of Law, J.D. cum laude, 1976, editor Maryland Law Forum.

With the recent installation of Marvin E. Kaplan as a Board Member, and the imminent Senate approval of William J. Emanuel, the NLRB should be at full strength with a Republican majority by the end of next week. Now the President will need to nominate a replacement for current Chairman Philip A. Miscimarra, whose term expires December 16, 2017, and who has announced that he will leave the Board.

William (Bill) Emanuel nominated for NLRB post

The President has made his second nomination to fill out the membership of the National Labor Relations Board.

William (Bill) Emanuel is a shareholder at Littler Mendelson where he practices traditional labor law in the Los Angeles office.

A graduate of Georgetown University Law School and Marquette University, he has authored several amicus curiae briefs on behalf of trade associations in cases challenging state laws that allow labor unions to enter employers' private property. He is often recognized as a Best Lawyer in America©.

  • Fellow in the College of Labor and Employment Lawyers
  • Contributing editor of the ABA's treatise The Developing Labor Law
  • Member of the Practice and Procedure Committee and Developing Labor Law Committee of the American Bar Association
  • Member and past chairman of the Labor and Employment Law Section of the Los Angeles County Bar Association
  • Member and past chairman of the Labor Relations Advisory Committee
  • Member and past chairman of the Employers Group Legal Committee.
  • Member of the Labor and Employment Practice Group of the Federalist Society.
  • He earned his JD from Georgetown University and AB from Marquette University.

More at the Littler web site.

Earlier, the President nominated Marvin Kaplan [See here]. Once the two nominees are confirmed by the Senate, the NLRB will be at its full strength of five Members, and the majority will be in Republican hands.

Here's a 3:56 minutes video in which I make predictions of 10 things that will change once the Republican Members take over:

 
 

Does Dodd-Frank protect internal whistleblowers? SCOTUS will decide.

I can just hear Justice Gorsuch saying, "Paul Somers asks us to tweak a congressional statute – just a little – so that it might (he says) work a bit more efficiently. "Respectfully, I would decline Mr. Somers’s invitation and would instead just follow the words of the statute as written." [Changing the names in what he said in his dissent in Perry v. Merit Systems Protection Board (US Supreme Ct 06/23/2017).]

The US Supreme Court granted certiorari on June 26 in a case that will settle a circuit court split as to whether the Dodd-Frank Act's anti-retaliation provision for “whistleblowers” extends to individuals who make internal disclosures of alleged unlawful activity but do not report alleged misconduct to the Securities and Exchange Commission. Digital Realty Trust, Inc. v. Somers (cert granted 06/26/2017) [Cert petition] [9th Circuit opinion] [Supreme Court briefs].

The facts are simple. Paul Somers was a VP employed by Digital Realty Trust. Somers' complaint alleged that he made several reports to senior management regarding possible securities law violations by the company, soon after which the company fired him. Somers was not able to report his concerns to the SEC before Digital Realty terminated his employment.

Somers sued, claiming violation of Dodd Frank's anti-retaliation provision. Digital Realty sought to dismiss the claim on the ground that, because Somers reported the possible violations only internally and not to the SEC, he was not a “whistleblower” entitled to Dodd Frank's protections. The district court held in favor of Somers, and the 9th Circuit affirmed. Somers v. Digital Realty Trust (9th Cir 03/08/2017) [Opinion text].

The problem is that Dodd Frank has two different places where the word "whistleblower" is expressly used. One is the addition of Section 21F to the Securities Exchange Act of 1934, which defines a whistleblower as, “any individual who provides, or 2 or more individuals acting jointly who provide, information relating to a violation of the securities laws to the Commission, in a manner established, by rule or regulation, by the Commission.” Obviously, this does not cover internal whistleblowers.

But there's another part of Section 21F which provides:

"No employer may discharge, demote, suspend, threaten, harass, directly or indirectly, or in any other manner discriminate against, a whistleblower in the terms and conditions of employment because of any lawful act done by the whistleblower—

"(i) in providing information to the Commission in accordance with this section;

"(ii) in initiating, testifying in, or assisting in any investigation or judicial or administrative action of the Commission based upon or related to such information; or

"(iii) in making disclosures that are required or protected under the Sarbanes-Oxley Act of 2002 (15 U.S.C. 7201 et seq.), this chapter, including section 78j-1(m) of this title, section 1513(e) of Title 18, and any other law, rule, or regulation subject to the jurisdiction of the Commission."

The 9th Circuit reasoned that subdivision (iii) incorporates the Sarbanes-Oxley Act disclosure requirements and protections and therefore "necessarily bars retaliation against an employee of a public company who reports violations to the boss."

There is a split among circuits. Berman v. Neo@Ogilvy LLC, 801 F.3d 145 (2nd Cir 2015) is in agreement with the 9th Circuit. Asadi v. G.E. Energy (USA), L.L.C., 720 F.3d 620 (5th Cir 2013) is not.

Look for Supreme Court oral arguments in the Fall of 2017, with a decision during 2018.

[For recent decisions and pending employment law cases, see Supreme Court Watch.]