Bloomberg reports that the Trump Administration plans to name attorneys Marvin Kaplan and William Emanuel to fill the two vacant member seats on the National Labor Relations Board. According to the report, sources indicate that these two are currently under the routine FBI review process for executive branch nominees, and the administration expects to formally advance the nominations in June. Per Bloomberg:
The administration hopes to have the new members confirmed by the Senate before the August recess, the sources said. Business lobbyists and other stakeholders have been prodding the White House to fill the seats, a move they say will help to peel back various Obama administration labor initiatives.
Regarding the presumptive nominees, the report notes:
Kaplan is an attorney for the Occupational Safety and Health Review Commission, an independent federal agency that hears cases involving alleged workplace safety violations and adjudicates disputes between the Labor Department and employers. He previously served as the Republican workforce policy counsel for the House Education and the Workforce Committee.
Emanuel is a management-side lawyer at Littler Mendelson, based in Los Angeles. He has worked with a wide range of business clients, including by challenging state laws allowing unions to enter employers’ private property, according to the firm.
Upon nomination and confirmation of these two members, as previously noted here, one should reasonably expect Chairman Miscimarra to pursue a fairly aggressive agenda during the remaining few months of his term to roll back the more extreme and overreaching decisions of the Obama Board. Likely targets include:
- the amorphous Browning-Ferris standard for finding joint employment status;
- the equally broad Miller & Anderson standard for including third-party employees and regular employees in single units without mutual consent;
- the largely discredited D.R. Horton holding that class and collective class action waivers violate the Act;
- the status of graduate teaching assistants as “employees” under the Act;
- the Purple Communications case’s creation of employee and union rights to use company equipment for organizing and union activity;
- the ever-expanding scope of “protected concerted activity” and its impact on all manner of unrelated workplace and handbook policies; and
- the expedited representation election rules — and the extreme interpretations which Regional Offices have enforced during elections.
Traditionally, the Board has avoided overturning precedent without three votes in favor, so the seating of a full Board would be critical to pursuit of such an agenda. It will be interesting to see the extent to which this factors into the speed and substance of this confirmation process.