President Obama’s National Labor Relations Board (NLRB) faced intense criticism for issuing significantly more precedent-changing pro-labor rulings than any previous Board. During President Trump’s first 200 days, employers have been waiting for Board nominees to be confirmed to two open slots, giving Republicans a 3-2 majority and shifting NLRB decisions towards individual employee and management rights.
One of Trump’s nominees, Marvin Kaplan, a former Occupational Safety and Health Review Commission lawyer, was confirmed (50-48) to fill one of the two open Board seats on Wednesday, August 2. Kaplan will serve a five-year term expiring August 27, 2020. Trump’s second nominee, William Emanuel, a management-side employment attorney, has been approved by the Senate Committee on Health, Education, Labor, and Pensions. A full Senate vote has not yet been scheduled, but is expected after the August recess. If he is confirmed, the Board will have a Republican majority for the first time since 2007.
The General Counsel position, currently held by Democrat Richard Griffin, Jr., will become vacant in November 2017. The Administration is considering Peter Robb, a management-side labor attorney, as a potential General Counsel nominee. The General Counsel controls which cases the NLRB prioritizes and pursues. Consequently, whomever Trump chooses will have the opportunity to begin the process of reversing many of the pro-labor rulings issued by the Obama Board.
Finally, Phillip Miscimarra, Chairman of the NLRB and the only Republican remaining from Obama’s Board, announced on August 8 that he would no longer serve on the Board when his term expires in December 2017. Miscimarra made this decision in order to spend more time with his family. Miscimarra dissented from nearly every major precedent change from 2013 to the present. The Administration will need to make a prompt nomination of a qualified Republican to Miscimarra’s seat to avoid 2-2 deadlocked decisions of the full Board (if Emanuel is confirmed) or having cases decided by three member panels with 2-1 Democrat majorities. The Senate already has a full legislative schedule through the remainder of 2017, so confirming a Board nominee before Chairman Miscimarra leaves his seat will be more difficult the longer the President takes to make his selection.