Tag: Marvin Kaplan

John Ring NLRB Chair

John Ring Joins the NLRB

On April 11, 2018, the U.S. Senate narrowly confirmed management-side labor attorney John Ring as the fifth member of the National Labor Relations Board. Ring fills the seat vacated in December 2017 by former Board Chairman Philip Miscimarra. The Senate voted 50-48 along party lines. Ring, a Republican, was a partner with Morgan, Lewis & Bockius LLP before his confirmation.

Current NLRB

Following Ring’s confirmation, the White House announced that he would replace Marvin Kaplan as Chair of the NLRB. President Trump had just named Kaplan the Chair in December. Despite the unusual demotion, Kaplan confirmed he would remain on the Board.

In addition to Kaplan, Ring joins members William Emanuel, Mark Pearce, and Lauren McFerran on the Board.

Other than formally making Ring the Chair, no further changes to the Board’s composition are expected until Member Pearce’s term expires on August 27, 2018. Traditionally, no more than three members of the Board have represented the same political party. However, that is not dictated by law. Thus, it will be interesting to see what the White House does regarding Pearce’s seat.

Republican Majority

Republicans now hold 3-2 majority control of the Board. This foretells a continued shift away from pro-labor decisions by the Obama-era NLRB. The Republicans recently held the majority for just a short time before Miscimarra’s term expired. They issued several significant reversals in the last days of his term. (Read more in 2017 NLRB Buzzer Beaters.)

However, the Republican majority still faces a hurdle that may slow the anticipated shift in federal labor law. Member Emanuel’s vote in one of the December 2017 reversals (regarding the joint employer standard) created controversy based on an alleged conflict of interest. Emanuel’s former firm had represented a party in the case that was overruled. The Board subsequently excluded Emanuel and vacated the decision in which he had participated, reverting to the Obama-era precedent.

Emanuel, who had been a partner at national labor law firm Littler Mendelson, may face similar conflicts in many other cases. Ring could also struggle with conflict issues given Morgan Lewis’ substantial client list.

More About John Ring

Before his confirmation, John Ring was a co-leader of Morgan Lewis’ labor/management relations practice.

He received his Bachelor’s Degree from Catholic University and his law degree from Catholic University’s Columbus School of Law. He is a Fellow of the College of Labor and Employment Lawyers.

Marvin Kaplan New NLRB Chairman

Marvin Kaplan Named New NLRB Chairman

On December 21, 2017, President Trump named Marvin Kaplan Chairman of the National Labor Relations Board. The new NLRB Chairman originally joined the Board in August. His term expires on August 27, 2020.

“The President’s announcement is an honor and privilege, and I look forward to serving as Chairman of the National Labor Relations Board.” Kaplan said. “I remain committed to working with my colleagues to achieve the important goal of issuing timely decisions that apply the National Labor Relations Act in a way that protects the rights of employees, employers, and labor organizations throughout the country.”

Current Composition of the NLRB

Fellow 2017 Trump appointee William Emanuel joins Kaplan as Republican members of the Labor Board.

Two holdover NLRB members from the Obama Administration, Mark Pearce and Lauren McFerran, are both Democrats.

Former Chairman Philip Miscimarra left the Board when his term expired on December 16, 2017. President Trump has not yet formally nominated someone to fill that seat. However, management-side labor attorney John Ring is believed to be the leading candidate, pending background checks.

Until Ring or another Republican joins the Board, the 2-2 party deadlock will likely prevent the NLRB from issuing any decisions on politically charged subjects. But, a series of actions by the Republican majority just before Miscimarra’s term expired predict additional policy changes once the Board regains full strength in 2018.

Meet the New NLRB Chairman

Before joining the NLRB, Marvin 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.

Kaplan received his B.S. in Policy Analysis and Management from Cornell University. He earned his J.D. from Washington University in St. Louis.

Before starting his public service career, Kaplan worked briefly in private practice as an associate in the Kansas City law firm of McDowell Rice Smith & Buchanan.

 

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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.