As discussed here, the U.S. Senate recently confirmed Marvin Kaplan to fill one of two vacancies on the National Labor Relations Board. There is still one current NLRB vacancy that labor attorney William Emanuel is likely to fill.
But that’s not the end of the labor board merry-go-round for President Trump’s first year in office. NLRB Chairman Philip Miscimarra’s term expires on December 16, 2017, and he has announced he will step aside at that time. This will create another opportunity for Trump to add another new Republican member to the Board.
Miscimarra indicated that he had been asked to stay for another term. However, he cited family reasons for choosing to leave the NLRB.
Miscimarra’s NLRB Tenure
Philip Miscimarra joined the Board on August 7, 2013, after nomination by then-President Obama and Senate confirmation. For virtually all of his time on the Board, Miscimarra was in the philosophical minority. He often issued dissenting opinions in significant cases decided by a Democratic majority.
Following President Trump’s inauguration, he named Miscimarra Acting Chair of the Board. Miscimarra was later named Chairman of the NLRB on April 24, 2017. Nonetheless, the Democrats retained the majority.
With Marvin Kaplan’s recent confirmation to fill one NLRB vacancy, Miscimarra will now lead a 2-2 split Board pending another confirmation. It is likely that the Senate will confirm William Emanuel after it’s August recess, finally giving Miscimarra a Republican majority for the last few months of his term.
Who Will Be the Next NLRB Chair?
When Trump took over as President, naming Miscimarra to be the Labor Board Chair was a no-brainer. He was the only Republican on the Board.
Now, however, the President will have options. Assuming Emanuel joins the Board before then, Trump could choose either him or Kaplan to Chair the NLRB. Alternatively, whoever replaces Miscimarra could be named Chair. Trump could even name Kaplan or Emanuel Acting Chair pending a confirmation of a new member to fill the NLRB vacancy Miscimarra’s departure will create.
About Miscimarra
Before joining the NLRB, Philip A. Miscimarra was a partner in Morgan Lewis & Bockius LLP‘s Chicago office. He was also a Senior Fellow in the Center for Human Resources at the University of Pennsylvania’s Wharton Business School.
Before joining Morgan Lewis in 2005, Miscimarra was a labor and employment attorney with Seyfarth Shaw LLP; Murphy Smith & Polk PC; and Reed Smith Shaw & McClay.
He received his Juris Doctor from the University of Pennsylvania Law School; a Masters in Business Administration from the University of Pennsylvania’s Wharton Business School; and a Bachelor of Arts degree, summa cum laude, from Duquesne University.
Who Will Fill the Next NLRB Vacancy?
It’s too early to guess specific names, but it’s safe to assume the nominee will be a pro-employer Republican attorney.
On one hand, the recently-confirmed Member Kaplan has relatively little experience as a practicing labor attorney. On the other hand, pending nominee Emanuel has spent approximately five decades in that role. Odds would seem to favor a third-Republican NLRB member with experience somewhere between those two.
It may also be worth noting that Secretary of Labor Alex Acosta is a former NLRB Member. As President Trump has already show a propensity to shuffle his highest level personnel, Acosta’s name might even end up on the list for a possible new NLRB Chair depending on how the next few months go in Washington.
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