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.
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.