The National Labor Relations Board (NLRB) is often described as a five-member panel of labor law judges, but in practice, it often has fewer than five members. After nearly two years without a full board of five members (and almost a year with only three), that is poised to change — which could favor employers.
Filling the Board
On June 20, 2017, President Trump nominated Marvin Kaplan to fill one of the vacant seats. On June 27 he announced his intention to nominate William Emanuel to fill the other. The final hurdle is Senate confirmation, and the nominations will likely face a long wait for that chamber’s attention.
Successfully appointing Kaplan and Emanuel to the Board would accomplish two ends. First, it would prevent the Board from ratcheting down to only two members when yet another term expires in December 2017. Without three members, the Board is unable to make rulings. Second, it would create a Republican majority on the Board. For years, presidents have honored the tradition that three members of the Board come from their parties, while the remaining two members come from the opposite party. President Trump inherited a Board that retained a Democratic majority, two members to one. Democratic-majority Boards tend to issue more decisions favoring unions, while Republican majorities tend to issue more decisions favoring employers. If confirmed, Kaplan and Emanuel will keep the Board doing business, and will likely introduce a new chapter of business-friendly decisions.
Kaplan is a Republican lawyer with a background working for the federal government. He currently serves 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. If confirmed, Kaplan and a Republican-majority Board could push to undo the current election rules, adopted under the Obama era, that disfavor employers.
Emanuel is a shareholder at Littler Mendelson, where he has extensive experience in labor law and labor relations. Prior to his practice at Littler, Emanuel also practiced at Jones Day, Morgan Lewis & Bockius LLP and Music Peeler & Garrett LLP. Emanuel has experience representing businesses before the NLRB, especially in contested disputes over class action waivers in employment contracts. The NLRB has held that class and collective action waivers violate the National Labor Relations Act, so we may see Emanuel and a Republican-majority Board switch positions on that issue in the near future.