Tag: appointment

NLRB Vacancy

Another NLRB Vacancy Coming Up

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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Marvin Kaplan Confirmed NLRB

Who’s New at the NLRB? Marvin Kaplan and More

On August 2, 2017, the U.S. Senate confirmed Marvin Kaplan as a new member of the National Labor Relations Board. Kaplan, a Republican attorney with a decade of federal government experience, fills an open seat on the 5-member NLRB.

With Kaplan’s confirmation, one seat remains vacant. President Trump has nominated longtime management-side labor attorney William Emanuel to fill that opening.

Marvin Kaplan’s Background

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.

Before joining the NLRB, Kaplan was legal counsel to the federal Occupational Safety and Health Review Commission. Before that, 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.

Opposition to Kaplan’s Appointment

The Senate confirmed Kaplan by a 50-48 party-line vote.

Democrats opposed Kaplan as anti-workers. Sen. Elizabeth Warren, D-Mass., claimed that, “As a House staffer he actively worked to strip workers of their rights.”

They also challenged his qualifications for the job of applying federal labor law. Sen. Patty Murray, D-Wash., offered, “And at his nomination hearing, Mr. Kaplan confused basic labor issues and decisions further proving he lacks the knowledge and experience to serve on this important board.”

On the whole pro-labor groups, including major labor unions, oppose Trump’s NLRB nominees. In a July 18, 2017 letter to the Senate, the AFL-CIO’s Government Affairs Department wrote:

“In recent years, some in Congress and in the business community have launched relentless attacks on the NLRB and sought to get key NLRB decisions and actions overturned. Kaplan and Emanuel have been part of these attacks, and they said nothing at the confirmation hearing to distance themselves from these attacks or suggest that they would bring a less hostile, and more pro-NLRA view to their work, should they be confirmed to the NLRB. Nor did either nominee make adequate commitments to recuse from cases and issues where there is real concern, based on their prior work and writings, that they have prejudged the issue and would not approach it with an open, unbiased mind.”

On the other hand, pro-business groups welcome Kaplan joining the Board. Glenn Spencer, Vice President of the U.S. Chamber of Commerce’s Workforce Freedom Initiative proclaimed, “Kaplan’s confirmation is certainly good news.”

Marvin Kaplan’s Expected Impact

There is every reason to believe that Marvin Kaplan will adhere to traditional Republican principles on key labor issues. This will ultimately lead to reversal of significant Obama-era NLRB decisions affecting millions of employers and employees. However, because the NLRB acts primarily by adjudicating actual cases, rather than rulemaking, the policy shifts will not be immediate.

The Senate will probably also confirm Republican William Emanuel after its August recess. That will give the Board a full 3-2 Republican majority. However, Richard Griffin, an Obama appointee, will continue as NLRB General Counsel until his term expires in November. Until then, he has some control over which cases are prosecuted and appealed within the agency. As a result, and considering the normal timeline of NLRB cases, we may not start seeing new decisions on major issues until 2018.

Who Will Be the Next NLRB General Counsel?

President Trump has not yet named anyone to replace Griffin as General Counsel. However, several names have surfaced as possible candidates.

G. Roger King, an apparent early front-runner for the position, has reportedly dropped out of consideration. King is a former Jones Day attorney, who now works for McGuiness & Yager LLP and the HR Policy Association.

As of August 3, 2017, Bloomberg BNA is reporting that Vermont attorney Peter B. Robb is now under consideration for the job. Robb practices labor and employment law with Downs Rachlin Martin PLLC. He served as chief counsel to NLRB Member Robert P. Hunter (R) in the 1980s.

Stay Tuned

The filling of these positions will likely have a significant impact on workplaces across the country.

I will continue to follow and report on these important National Labor Relations Board developments. Sign up for my email newsletter to make sure you don’t miss any future updates and insights.