Questions for the Record
“William Emanuel Nomination for Member of the National Labor
Relations Board”
Hearing Date: July 13, 2017
Questions for the Record from Ranking Member Patty Murray
1. What, in your view, is the mission of the agency to which you have been
nominated?
To enforce the National Labor Relations Act as enacted by Congress.
2. Do you believe that the purpose of the National Labor Relations Act
(NLRA), enforced by the National Labor Relations Board (NLRB or
Board), is to encourage and protect workers’ rights to organize and engage
in collective bargaining with their employers? If not, please describe in
detail your views on the purpose of the NLRA and the Board.
As stated in Section 1 of the NLRA, one purpose is “to eliminate the causes of
certain substantial obstructions to the free flow of commerce and to mitigate
and eliminate these obstructions when they have occurred by encouraging the
practice and procedure of collective bargaining and by promoting the exercise
by workers of full freedom of association, self-organization, and designation of
representatives of their own choosing, for the purpose of negotiating the terms
and conditions of their employment or other mutual aid or protection.”
In 1947, the NLRA was amended to add several additional purposes:
(1) “to prescribe the legitimate rights of both employees and employers in their
relations affecting commerce,”
(2) “to provide orderly and peaceful procedures for preventing the interference
by either with the legitimate rights of the other,”
(3) “to protect the rights of individual employees in their relations with labor
organizations whose activities affect commerce,”
(4) “to define and proscribe practices on the part of labor and management
which affect commerce and are inimical to the general welfare,” and
(5) “to protect the rights of the public in connection with labor disputes
affecting commerce.”

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 3. During your confirmation hearing before the committee, I asked you
whether protecting and promoting workers’ right to organize was the
mission of the NLRB. You responded that this was one of the Board’s
missions, along with protecting employers, individual employees and the
public. Are all of these interests of equal weight, or are some of them more
important than others?
It is up to Congress to decide the relative importance of these statutory goals.
The Board’s responsibility is to enforce the NLRA as enacted by Congress.
4. During your confirmation hearing before the committee, you were asked
whether your work ever benefitted workers or unions. In response, you
stated that you have engaged in collective bargaining and that workers
benefited from this process through higher wages and benefits. Has an
employer you have represented in collective bargaining ever been charged
with a failure to bargain in good faith in violation of section 8(a)(5) of the
National Labor Relations Act? If yes, please provide additional details.
I have represented employers for many years. It is possible that such a charge
has been filed although I do not recall a specific case where that has occurred.
Of course, a charge is only an allegation, and not a decision by the Board that a
violation of the Act has occurred.
5. Arthur Mendelson, the founder of your firm Littler Mendelson once said of
your firm’s specialization in union avoidance tactics: “our clients pay a lot
of money…if they want aggressiveness, they are entitled to it.” If you are
confirmed, please describe the steps that you will take to transition from a
practitioner and senior partner at a firm with this philosophy to a neutral
arbiter as a Member on the NLRB?
Attorneys have a responsibility to zealously represent their clients’ interests. I
understand that, if confirmed, my role and responsibilities as a member of the
NLRB will be different than my role and responsibilities as an advocate in
private practice. If I am confirmed, I will do my best to objectively decide the
issues that come before the Board after considering the facts of each case, the
intent of Congress as expressed in the NLRA, the Supreme Court’s precedent,
the Board’s precedent, the arguments of the parties, and the views of the other
members of the Board.

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 6. In a 2012 podcast, you indicated that you “come from” a perspective of
valuing worker protection laws far less than creating an employer-friendly
legal climate. You said, “My topic is California employment laws from a
broad brush prospective and how the employment laws in California
create a horrible anti-employer climate. It’s a terrible climate for job
creation and job retention. Now you know at the outset where I come
from.” Is this the perspective you will bring to the Board?
Based on my experience, there is a consensus among employers that many of
the state employment laws in California are as I described them. However, this
is not relevant to how I would decide cases under the NLRA, which is a
separate federal statute that is unrelated to state employment laws.
If I am confirmed, I will do my best to objectively decide the issues that come
before the Board after considering the facts of each case, the intent of Congress
as expressed in the NLRA, the Supreme Court’s precedent, the Board’s
precedent, the arguments of the parties, and the views of the other members of
the Board.
7. Please describe your views on the role and importance of labor unions in
today’s workplaces and economy.
Unions have certain rights under the NLRA, and I will enforce that statute
faithfully and impartially.
8. What, in your view, would be a scenario in which it would be appropriate
for the NLRB to take action against a company who is unfairly retaliating
against workers based on antiunion hostility?
If a violation of the NLRA by an employer is proven, an appropriate remedy
should be ordered.
9. Do you agree that the workplace and the employer-employee relationship
has changed dramatically in recent years? If so, can you describe what you
see as the key changes affecting workers’ ability to join together and
engage in collective bargaining? What are some of those challenges and
how would you go about addressing them?
These questions would be beyond the scope of my responsibilities as a Board
member, if I am confirmed. The responsibility of Board members is to enforce
the NLRA.
10.Do you believe that the designation of workers as independent contractors
rather than employees is a practice that is increasing?
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 This would be beyond the scope of my responsibilities as a Board member if I
am confirmed. The responsibility of Board members is to enforce the NLRA.
11.Please provide your view on when the NLRB should overturn settled
precedents, and what the standard should be in doing so.
By tradition, the Board does not change precedent without the votes of three
Board members. Otherwise, precedent has not been treated as binding. My
view is that precedent should not be followed if it is in conflict with the NLRA
as enacted by Congress. The Board’s responsibility is to enforce that statute.
12.What specific considerations do you intend to rely upon in deciding
whether to authorize petitions to have a recidivist violator of the NLRA
held in contempt of court for violating a court order?
If I am confirmed, I will do my best to objectively decide the issues that come
before the Board after considering the facts of each case, the intent of Congress
as expressed in the NLRA, the Supreme Court’s precedent, the Board’s
precedent, the arguments of the parties, and the views of the other members of
the Board.
13.Do you believe that there were instances where the Board has exceeded its
authority during the Obama Administration? If so, when?
If I am confirmed, I will do my best to objectively decide the issues that come
before the Board after considering the facts of each case, the intent of Congress
as expressed in the NLRA, the Supreme Court’s precedent, the Board’s
precedent, the arguments of the parties, and the views of the other members of
the Board.
14.The Board has been the target of criticism for its use of adjudication rather
than rulemaking to establish policy. Under President Obama, the Board
conducted two major notice-and-comment rulemakings for the first time in
decades. If confirmed, do you intend to continue this practice of making
new rules or altering existing rules through notice-and-comment
procedures?
It would be inappropriate for me to comment on this question. If rulemaking
proposals are submitted, I will consider them at that time.

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 15.The Administrative Conference of the United States has recommended that
agencies “should develop processes for systematic review of existing
regulations” and that they “should provide adequate opportunity for
public involvement in both the priority-setting and review processes.” If
confirmed, will you conduct robust, transparent retrospective reviews
prior to any revision or reversal of existing NLRB law?
I am not familiar with this recommendation, but I will study the issue, if
confirmed.
16.Do you believe that existing doctrines and regulations should only be
changed when there is empirical evidence suggesting that they are flawed,
or is it appropriate to revise rules even if such revisions are not supported
by concrete evidence?
They should be changed if they are contrary to the NLRA.
responsibility is to enforce that statute.

The Board’s

17.Please provide a list of all cases currently pending before the NLRB in
which Littler Mendelson represents a party. For each of these cases,
please indicate whether you authored, edited, revised, or reviewed
materials related to the case. If yes, please describe the services you
performed and indicate at what stage of the process you participated.
A list of these cases is attached to this document. I did not author, edit, revise
or review materials related to any of the cases.
18.Please provide a list of all cases decided by the NLRB and that are
currently on appeal in which Littler Mendelson represents a party. For
each of these cases, please indicate if you authored, edited, revised, or
reviewed materials related to the case. If yes, please describe the services
you performed and indicate at what stage of the process you participated.
A list of these cases is attached to this document. I did not author, edit, revise
or review materials related to any of the cases.
19.Please provide a list of cases pending before the NLRB, or on appeal, in
which you provided pro bono services including any case or matter in
which you authored, edited, revised, or reviewed materials related to the
case without receiving compensation.
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 I do not recall providing pro bono services in such a case.
20.Please confirm that you intend to recuse yourself for two years from all
cases that come before the NLRB in which Littler Mendelson represents a
party.
That is my understanding of the requirement. I will do whatever is required by
law.
21.Leadpoint Services, a party in the Board’s Browning-Ferris case, is
represented by Littler Mendelson. Will you recuse yourself for the
required period from any action by the Board that involves Leadpoint
Services?
If recusal questions arise with regard to any particular matter, I will request the
advice of the Board’s ethics office.
22.Please provide a list of all writings and all matters during the past ten
years that involve arbitration agreements or class action litigation. Please
include matters that were not litigated but on which you advised or
otherwise engaged with a client on these subjects. Do not include client
names but provide a number of matters and a general description of the
issue.
The requested articles are attached to this document. I have represented several
employers in cases involving class and collective action waivers in employment
arbitration agreements.
23.In your view are there limits to an employer’s ability to require employees
to waive their rights to class actions/group actions as a condition of
employment?
It would be inappropriate for me to comment on this subject. If I am confirmed,
I will do my best to objectively decide the issues that come before the Board
after considering the facts of each case, the intent of Congress as expressed in
the NLRA, the Supreme Court’s precedent, the Board’s precedent, the
arguments of the parties, and the views of the other members of the Board.

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 24.Your writings include at least six articles critical of the NLRB’s decision in
D.R. Horton, including one article entitled “NLRA v. FAA: Why the
NLRB Got It Wrong in D.R. Horton.” Do you believe that you can be a
neutral arbiter on the issue of arbitration clauses limiting employees’
rights in class action cases?
If I am confirmed, I will do my best to objectively decide the issues that come
before the Board after considering the facts of each case, the intent of Congress
as expressed in the NLRA, the Supreme Court’s precedent, the Board’s
precedent, the arguments of the parties, and the views of the other members of
the Board.
25.Given the extent of your personal views, and your involvement in the issue
of arbitration agreements and class action litigation, do you believe you
will be free of an appearance of a conflict should these issues come before
you as a Member of the NLRB?
If recusal questions arise with regard to any particular matter, I will request the
advice of the Board’s ethics office.
26.As a specific example to the preceding question, you have expressed views
that D.R. Horton and Murphy Oil, currently pending before the Supreme
Court, was wrongly decided. You also filed an amicus brief in the case on
behalf of the National Retail Federation. Will you recuse yourself from
involvement with these cases with regard to action by the Board?
If recusal questions arise with regard to any particular matter, I will request the
advice of the Board’s ethics office.
27.Please provide a list of all writings and all matters during the past ten
years that involve union activity and private property and/or trespass.
Please include matters that were not litigated but on which you advised or
otherwise engaged with a client on these subjects. Do not include client
names but provide a number of matters and a general description of the
issue.
Copies of the articles are attached to this document. This question involves
state trespass laws and it does not involve the NLRB. I have advised various
employers on the absence of private property rights for employers in California.
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 This is distinct from the right of unions and employees to engage in union
activity on private property under the NLRA, which has not been involved in
the articles referred to above.
28.Your writings include at least seven articles that discuss your views that
employers should have broad rights to limit access for union supporters to
the employer’s private property. In a 2009 article titled “Union
Trespassers Roam Corridors of California Hospitals—Is a Return to the
Rule of Law Possible?” you wrote “the trespass laws are not adequately
enforced against labor unions. Many employers suffer from this unequal
protection of the laws. […] This situation is unfair.” Given the extent of
your personal views, and your involvement as a client advocate in this
issue, do you believe that you will be free of an appearance of a conflict
should these issues come before you as a Member of the NLRB?
If recusal questions arise with regard to any particular matter, I will request the
advice of the Board’s ethics office.
29.With regard to the Specialty Healthcare case, involving rules for
determining the make-up of bargaining units, when the case was pending
in the U.S. Court of Appeals for the Sixth Circuit, you authored a brief on
behalf of a group of House and Senate Republicans. Please provide
additional details regarding the brief including whether you were
compensated for the work, and if so by whom.
I assisted in writing the brief, but I was not involved in the client relationship,
and I am not aware of the extent of compensation.
30.What is the appropriate role of an NLRB Member in facilitating oversight
by Members of Congress?
Because I do not have prior experience with responding to congressional
oversight requests, I plan to work with other members of the Board, as well as
the Board’s professional staff, to ensure that the Board responds to oversight
requests received from Congress in an appropriate manner.
31.Is it appropriate for a single NLRB member to respond to an oversight
request without working with counsel’s office and working with the other
NLRB Members?

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 Board members should attempt to work together, and with the guidance and
input of the Board’s professional staff, to the fullest extent possible to respond
to oversight requests received from Congress in an appropriate manner.
32.If confirmed, will you commit to working with other NLRB Members to
fully respond to Congressional oversight requests made during your tenure
at NLRB?
If confirmed, I will attempt to work together with other Board members and the
Board’s professional staff to the fullest extent possible to respond to oversight
requests received from Congress in an appropriate manner.
33.Please provide copies of your contribution to the following publications:
a. California Employment Law, a Guide to California Laws Regulating
Employment in the Private Sector, Merchants and Manufacturers
Association, 1990
b. California Employment Law, a Guide to California Laws Regulating
Employment in the Private Sector, 2d edition, Merchants and
Manufacturers Association,1992
c. California Employment Law, a Guide to California Laws Regulating
Employment in the Private Sector, 3d edition, The Employers
Group, 1997
d. Model Affirmative Action Program for Hospitals, California
Hospital Association, 1973
Supreme Court Bans the Use of Sex-Based Mortality Tables in
Employee Fringe Benefit Plans, Corporate Law Departments Section
Newsletter, Los Angeles County Bar Association, December 1983
The first three items above are three editions of a book written several
decades ago, which consist of five volumes and would be very difficult to
copy. The last edition of the book was published in 1997. Copies of the
other items requested above are attached to this document.

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