On June 27, 2017, President Donald Trump nominated William Emanuel to serve as a member of the National Labor Relations Board. Emanuel has spent more than 50 years practicing labor law at some of the largest law firms in the country.

The President nominated Marvin Kaplan to the other open NLRB seat a week earlier. Both nominees are Republicans.

Current NLRB

Under President Obama, the NLRB often featured a majority of Democrat members, resulting in highly pro-labor and pro-employee decisions.

The NLRB is currently comprised of Republican chair Philip Miscimarra and Democrats Mark Gaston Pearce and Lauren McFerran. Chairman Miscimarra’s term expires on December 16, 2017. Member Pearce’s and Member McFerran’s terms don’t expire until August 27, 2018 and December 16, 2019, respectively.

Although it is standard that the party in control of the White House will appoint a majority of NLRB members from that party, Trump’s nominations for other positions have so far found a relatively slow road to confirmation. Thus, it is tough to predict when Emanuel and Kaplan may join the Board.

Impact of William Emanuel Joining the NLRB

Emanuel has a long career of representing employers in labor relations matters. He is currently a shareholder with the prominent nationwide labor and employment law firm Littler Mendelson P.C.

There is little doubt that Emanuel, like Kaplan, would bring a more conservative viewpoint than the current NLRB majority. If they are both confirmed, they would bring a Republican majority to the NLRB for the first time since early in the Obama Administration.

The NLRB could have its hands tied, however, if Emanuel and Kaplan face delays in receiving Senate approval. With Chairman Miscimarra’s term set to expire this December, Trump will either have to re-nominate him or someone else, again subject to Senate confirmation. Thus, it is possible that all 3 “Republican” seats could be up in the air by the end of this year. If the Board falls down to only two members, then it would not be able to decide cases.

Once the NLRB does have 3 Republican members, we can expect a sea change in NLRB decisions. Many cases decided by the Obama Board featured Republican Members in dissent. In addition, the NLRB representation election rules could be under review, as the Obama Board changed them to expedite elections, increasing the likelihood of union victory.

For more on the current Administration’s conflict with the Obama-Era NLRB, see my recent post on the DOJ vs. NLRB.

More About William Emanuel

William Emanuel received his Bachelor’s Degree from Marquette University and his law degree from Georgetown University. Before joining Littler, he also practiced law with Jones Day, Morgan Lewis & Bockius LLP, and Musick Peeler & Garrett LLP.

Emanuel is a member the Federalist Society’s labor and employment practice group executive committee.

On June 20, 2017, President Donald Trump named his first nominee for the National Labor Relations Board. Republican attorney Marvin Kaplan is currently counsel to the federal Occupational Safety and Health Review Commission.

Kaplan’s nomination leaves one more vacancy on the NLRB. President Trump is expected to nominate private-practice labor attorney William J. Emanuel to the remaining seat in the near future.

The nominations are subject to Senate confirmation.

Current NLRB

Under President Obama, the NLRB often featured a majority of Democrat members, resulting in highly pro-labor and pro-employee decisions. In fact, the NLRB continues to have a 2-1 Democrat majority pending Trump’s appointments.

The NLRB is currently comprised of Republican chair Philip Miscimarra and Democrats Mark Gaston Pearce and Lauren McFerran. Chairman Miscimarra’s term expires on December 16, 2017. Member Pearce’s and Member McFerran’s terms don’t expire until August 27, 2018 and December 16, 2019, respectively.

Although it is standard that the party in control of the White House will appoint a majority of NLRB members from that party, Trump’s nominations for other positions have so far found a relatively slow road to confirmation. Thus, it is tough to predict when Kaplan, Emanuel, or any other potential nominee would join the Board.

Impact of Marvin Kaplan Joining the NLRB

Kaplan has approximately a decade of experience working for the federal government. Before his most recent position, he served as workforce policy counsel for the U.S. House Committee on Education and the Workforce. He also served as counsel for the House Oversight and Government Reform Committee and the Office of Labor-Management Standards.

There is little doubt that Kaplan would bring a more conservative viewpoint than the current NLRB majority. If he becomes the fourth NLRB member, he could join Chairman Miscimarra on 3-member panels to provide a Republican majority. However, in the most significant cases, it is more likely that all four members would participate, creating the possibility of a 2-2 Republican-Democrat deadlock.

The timing of Kaplan’s confirmation (along with that of Emanuel or another eventual nominee for the second current vacancy) may be significant. With Chairman Miscimarra’s term set to expire this December, Trump will either have to re-nominate him or someone else, again subject to Senate confirmation. Thus, it is possible that all 3 “Republican” seats could be up in the air by the end of this year.

Regardless, once the NLRB does have 3 Republican members, we can expect a sea change in NLRB decisions. Many cases decided by the Obama Board featured Republican Members in dissent. In addition, the NLRB representation election rules could be under review, as the Obama Board changed them to expedite elections, increasing the likelihood of union victory.

For more on the current Administration’s conflict with the Obama-Era NLRB, see my recent post on the DOJ vs. NLRB.

More About Marvin Kaplan

Marvin Kaplan received his Bachelor’s Degree from Cornell University and his law degree from Washington University in St. Louis. After law school, he worked briefly as an associate in the Kansas City law firm of McDowell Rice Smith & Buchanan.