Tag: Marvin Kaplan

2025 NLRB Board Member Nominees

Trump Names First 2025 NLRB Board Member Nominees

On July 17, 2025, President Trump submitted the nominations of Scott Mayer, Boeing’s chief labor counsel, and James Murphy, a veteran NLRB attorney, to fill the two Republican vacancies on the National Labor Relations Board. These 2025 NLRB Board nominations represent the next step toward re-establishing a functioning Board after a prolonged standoff that began in January.

The Removal of Gwynne Wilcox

In a rare and consequential move, President Trump removed Democratic Member Gwynne Wilcox on January 27, 2025, despite her term being set to run through August 2028. Notably, no allegations of misconduct or neglect of duty accompanied her dismissal. Wilcox quickly filed suit, citing the National Labor Relations Act’s explicit requirement that a Board member may only be removed for cause—specifically, neglect of duty or malfeasance.

A federal district court sided with Wilcox in March, ordering her reinstatement. But that decision was stayed—first by the D.C. Circuit and then by the U.S. Supreme Court in May, effectively allowing the removal to stand for the time being. The legal battle remains active and may ultimately prompt the Court to revisit long-standing precedent that limits presidential authority to remove members of independent agencies.

Frozen in Limbo

Since Wilcox’s removal, the NLRB has operated with only two sitting members—Republican Chairman Marvin Kaplan and Democrat David Prouty—leaving it without the three-member quorum required to issue decisions or take formal action. As a result, hundreds of pending matters, from unfair labor practice charges to union election petitions, have ground to a halt. While pro-labor rulings from the Biden era remain in effect, the current Board lacks the quorum necessary to issue new decisions or revisit those precedents.

Meet the First 2025 NLRB Board Member Nominees

Scott Mayer: A Corporate Counsel with Management Credibility

Scott Mayer currently serves as chief labor and employment counsel at Boeing, one of the world’s largest aerospace manufacturers and a frequent player in high-stakes labor relations. Mayer has spent much of his career advising corporate leadership on collective bargaining strategy, managing labor disputes, and responding to union organizing efforts across Boeing’s nationwide facilities. His public record includes involvement in some of the most contentious labor negotiations in the private sector, including disputes involving the International Association of Machinists and the SPEEA engineers’ union.

Prior to joining Boeing, Mayer worked in private practice representing employers in labor and employment matters. He is regarded as a strategic thinker with a deep understanding of the National Labor Relations Act and a clear preference for traditional, employer-focused interpretations of Board precedent. While not as publicly outspoken as some prior nominees, his record reflects a consistent orientation toward limiting the reach of union-friendly doctrines and maintaining management flexibility in workforce decisions.

If confirmed, Mayer would likely favor curbing Board deference to union access, narrowing the definition of protected concerted activity, and restoring business-friendly case law on discipline, surveillance, and employer speech rights.

James Murphy: The Institutional Insider

In contrast to Mayer’s corporate pedigree, James Murphy brings an insider’s grasp of Board operations after five decades of government service. A career attorney at the NLRB, Murphy has advised both Republican and Democratic-led Boards over the years, contributing to the General Counsel’s office and supporting enforcement in regional investigations and appellate litigation.

Murphy is respected among practitioners as a procedural expert who knows the internal workings of the agency better than almost anyone. Though not publicly outspoken, his long tenure has made him a stabilizing figure within the institution. Republicans likely view Murphy as a safe pick to provide continuity and procedural discipline while still aligning with conservative views on the limits of Board power.

His experience also makes him an ideal candidate to help unwind recent doctrinal shifts and reassert the Board’s more traditional enforcement approach, particularly in the wake of regulatory and decisional experimentation during the Biden years.

What Confirmation of Mayer and Murphy Would Mean

Confirmation of Mayer and Murphy would immediately restore the Board’s quorum and give Republicans a 3–2 majority. Mayer’s term would run into 2029, and Murphy’s into 2027, solidifying a longer-term shift in the Board’s ideological direction.

With a new Republican majority in place, the Board could quickly revisit and reverse several high-profile decisions issued in recent years. Potential areas for change include:

  • Narrowing the definition of “joint employer”

  • Reversing rules limiting employers’ ability to hold mandatory meetings opposing unionization

  • Redefining what constitutes protected concerted activity under the National Labor Relations Act

  • Relaxing restrictions on employee handbooks and workplace policies

For employers and management-side counsel, these changes would represent a significant shift from the Board’s recent trajectory and a return to more traditional interpretations of the Act.

A Time Pressure Scenario

Chairman Kaplan’s term is set to expire on August 27, 2025, and he has not been nominated for reappointment. This creates a time-sensitive dynamic for the confirmation process for these 2025 NLRB nominations. If Mayer and Murphy are confirmed before Kaplan’s term expires, the Board will immediately regain quorum and a Republican majority. If confirmation is delayed until after Kaplan steps down, Prouty, a Democrat, could temporarily become the only Board member and de facto chair. Without quorum, his authority would be limited. Nonetheless, it would present a politically awkward scenario under a Republican administration.

Why Employers Should Pay Attention to These 2025 NLRB Nominations

The outcome of this series of events will shape the labor law landscape for years to come. Employers should closely monitor both the confirmation timeline and the ongoing litigation over Wilcox’s removal. If the Supreme Court ultimately rules in Trump’s favor, it could fundamentally alter the degree of independence enjoyed by administrative agencies.

Trump’s first 2025 NLRB Board Member nominations are more than mere personnel decisions. They are a calculated move to reclaim control of the NLRB ahead of Kaplan’s impending departure. If Mayer and Murphy are confirmed, the Board will resume its decision-making authority with a Republican majority. Until then, labor-friendly precedents remain the controlling administrative interpretation of many aspects of the NLRA. And hanging over it all is the unresolved question of whether a president can lawfully remove a sitting NLRB member without cause—a constitutional showdown that may soon reach its climax.

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Kaplan NLRB Chair

Kaplan NLRB Chair Again Upon Trump Inauguration

On January 20, 2025, newly inaugurated President Donald J. Trump promptly reinstated Marvin E. Kaplan as Chairman of the National Labor Relations Board (NLRB). Kaplan, who has been a member of the NLRB since August 10, 2017, previously served as its Chairman from December 21, 2017, to April 15, 2018. His current term is set to expire on August 27, 2025.

Prior to his tenure at the NLRB, Kaplan held several government positions, including Chief Counsel to the Chairman of the Occupational Safety and Health Review Commission, counsel for the House Committee on Oversight and Government Reform, and policy counsel for the House Committee on Education and the Workforce. He also served at the U.S. Department of Labor’s Office of Labor Management Standards and practiced law with McDowell Rice Smith & Buchanan. Kaplan earned his B.S. from Cornell University and his J.D. from Washington University in St. Louis.

Current Composition of the NLRB

As of January 20, 2025, the NLRB comprises the following members:

  • Marvin E. Kaplan (Chairman): Republican appointee serving a term expiring on August 27, 2025.
  • David M. Prouty: Democratic appointee with a term expiring on August 26, 2026.
  • Gwynne A. Wilcox: Democratic appointee serving a term expiring on August 27, 2028.

Two seats on the five-member board are currently vacant. Notably, former Chair Lauren McFerran’s term expired on December 16, 2024, and her reappointment was blocked by the Senate in a 50-49 vote, with Senators Joe Manchin and Kyrsten Sinema joining Republicans in opposing the nomination. That vote will allow President Trump to nominate replacements, and will certainly result in shifting the board to a Republican majority in the near future.

Anticipated Changes and Impact

With President Trump’s reappointment of Kaplan as Chairman and the opportunity to fill the two vacant seats, the NLRB is poised for a significant shift in its policy direction. Historically, Republican-majority boards have favored more employer-friendly interpretations of labor laws. Employers and labor organizations should prepare for reversals of pro-union decisions made during the previous administration.

In addition to changes in board composition, it is expected that President Trump will promptly appoint a new General Counsel to the NLRB, replacing Jennifer Abruzzo. The General Counsel plays a crucial role in setting enforcement priorities and interpreting labor laws, further influencing the Board’s direction.

These developments suggest a forthcoming pro-employer shift in labor policy, affecting union activities, collective bargaining processes, and employer-employee relations across the United States. Employers should stay informed and adapt to the evolving regulatory landscape.

 

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Joint Employer NLRB Rulemaking

NLRB Suggests Joint Employer Rules

On May 9, 2018, the National Labor Relations Board announced that is considering rulemaking on the subject of joint employer status. The joint employer standard has received much attention in recent year. The Board’s Republican majority tried to change the standard for this important analysis through a December 2017 case decision. However, the NLRB later withdrew that decision upon allegations that one of the Republican members had a conflict of interest. Shifting to rulemaking to change the joint employer standard may overcome the conflict issue.

Current Joint Employer Analysis

In 2015, a 3-2 Democratic majority Board decided a case involving whether Browning-Ferris Industries of California (BFI) was a joint employer with a company that supplied workers onsite at BFI. The NLRB departed from precedent and applied an “indirect control” standard that considerably expanded the situations where two entities would be joint employers under the National Labor Relations Act. The broad test only requires that the entities “share or codetermine those matters governing the essential terms and conditions of employment.” This is evaluated by asking whether each entity “possesses sufficient control over employees’ essential terms and conditions of employment to permit meaningful collective bargaining.”

Before this case, the NLRB applied a “direct” and “substantial” control standard.

The primary difference was the shift from requiring actual exercise of control over workers to mere potential of control.

Initial Attempt to Return to Previous Standard

When President Trump took office, he named Philip Miscimarra the Chairman of the NLRB. Miscimarra was on the Board when the NLRB decided the Browning-Ferris case. He and the other Republican member at the time issued a vigorous dissent to the Democratic majority’s decision. Just before Miscimarra’s term expired in December 2017, he and a new Republican majority issued several prominent decisions reversing Obama-era NLRB precedent. This included an attempted reversal of the joint employer standard.

In a December 14, 2017, 3-2 Board decision, the NLRB announced it was returning to the earlier test. The restored test focused on which business(es) have “direct and immediate” control over terms and conditions of employment. It dismissed analysis of “indirect” factors that the Democrat majority introduced in 2015.

However, on February 26, 2018, the NLRB vacated the December 14, 2017 decision, reverting to the “indirect control” standard. Marvin Kaplan, whom Trump had appointed Chair upon Miscimarra’s departure, joined the two Democratic members in that decision. The other Republican member, Bill Emanuel, was not allowed to participate in the decision. The NLRB Inspector General’s Office had opined that Emanuel had a conflict of interest. His previous law firm had represented a party in the Browning-Ferris case, which the December 14, 2017 decision effectively overturned.

The alleged conflict may prevent Emanuel from deciding any case involving a change in the joint employer standard.

Shift to Rulemaking

The NLRB recently regained full strength with the Senate confirmation of Republican attorney John Ring as the fifth member. President Trump promptly replaced Kaplan with Ring in the Chairman seat. Ring, like Emanuel, may also face conflict challenges given the extensive client-base of his former firm.

Likely because the Republican majority would face repeated conflict claims in attempting to overturn Browning-Ferris through adjudication of an actual case, Chairman Ring has shifted to administrative rulemaking as the vehicle to change the joint employer standard. The NLRB has seldom relied on rulemaking to establish policy. So, this attempt to do so will itself likely face legal challenges.

Nonetheless, Chairman Ring offers a compelling argument for the rulemaking approach:

“Whether one business is the joint employer of another business’s employees is one of the most critical issues in labor law today,” says NLRB Chairman John F. Ring. “The current uncertainty over the standard to be applied in determining joint-employer status under the Act undermines employers’ willingness to create jobs and expand business opportunities. In my view, notice-and-comment rulemaking offers the best vehicle to fully consider all views on what the standard ought to be.”

His Democratic colleagues unsurprisingly disagree. The NLRB’s press release on the matter specifically noted that “The inclusion of the proposal in the regulatory agenda does not reflect the participation of Board Members Pearce and McFerran.”

The press release explained that the next step would be the issuance of a Notice of Proposed Rulemaking. Although it added that “[a]ny proposed rule would require approval by a majority of the five-member Board,” that statement notably recognizes that the opposition of Members Pearce and McFerran will not be enough to overcome the expected consensus of the three Republican members.

Expected Outcome of Joint Employer Rulemaking

Chairman Ring even took to Twitter to make his views known: “The joint-employer standard is one of the most critical issues in labor law today—affecting millions of Americans in nearly every sector of the economy. Uncertainty over the standard undermines job creation & economic expansion. The new majority intends to get the job done.”

There’s no mystery of what that job is. It’s finding joint employers status only where multiple entities have “direct and immediate” control over workers.

And, although administrative rulemaking takes some time, Ring wants to do this quickly: “The Board majority will work to issue a proposed rule ASAP, and we will consider the views of all interested parties.”

Member Pearce, who was the NLRB Chair when it decided Browning-Ferris, also tweeted on this subject. Among his pointed comments: “Board majority “considering rulemaking” but @NLRBChairman says “Board majority…work[ing] to issue proposed rule ASAP” — certainly sounds like another objective is already set. .”

 

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