After nearly two years without a full National Labor Relations Board (NLRB) of five members, the Senate recently confirmed one of President Trump’s nominees. A full five-member board that will favor employers is anticipated soon.
The Senate confirmed President Trump’s nominee, Attorney Marvin Kaplan, by a 50-48 vote (a party-line split) on August 2, 2017. The quasi-judicial body is now composed of two Democrats and two Republicans. The newly restored balance on the NLRB may create deadlock in overturning some of its more controversial pro-labor decisions under the Obama administration. However, President Trump announced in June 2017 the nomination of management-side labor lawyer William Emanuel to fill the remaining vacant seat. If Emanuel is also confirmed, then there will be a Republican majority on the Board, which means we could see more decisions favoring employers.
Kaplan is a Republican lawyer with a background working for the federal government. He served as Chief Counsel of the Occupational Safety and Health Review Commission. Before that, Kaplan served in a number of capacities that built his relevant experience. He was Special Assistant in the U.S. Department of Labor’s Office of Labor-Management Standards, which is a primary regulator of unions. On Capitol Hill, he served as Counsel for the U.S. House Oversight and Government Reform Committee and the U.S. House Education and the Workforce Committee. While working with House Republicans on the education and oversight committees and with employment-related legislation, Kaplan assisted with drafting a bill to undo the “ambush” union election rules that do not allow employers enough time to make their case to workers against unionization.
With Kaplan confirmed and the Board poised toward a Republican-majority Board, we may see the Board change its positions on the current election rules and other issues including class action waivers, which the NLRB has previously held violate the National Labor Relations Act.