Hunton Employment & Labor Perspectives

On August 3, 2017, the U.S. Senate confirmed Marvin Kaplan, a former Occupational Safety and Health Review Commission attorney, to fill one of the two vacant seats on the National Labor Relations Board.  Kaplan’s confirmation moves the Board one step closer to a Republican majority.  Kaplan was confirmed on a 50-48 party-line vote by the Republican-controlled Senate.  Kaplan joins NLRB Board Chairman Philip Miscimarra on the Republican side of the NLRB.  Mark Gaston Pearce and Lauren McFerran are the Democrat Board members.

The Senate has yet to schedule a vote for President Trump’s second nominee for the Board, William Emanuel.  Emanuel is a long time management-side labor and employment attorney. The Senate is expected to vote for cloture on Emanuel’s nomination after the August recess.  Voting for cloture would limit the time to consider the nomination (and thereby overcome a filibuster) to a 30-hour period.  A final confirmation vote would then be scheduled.

If the nomination of Emanuel is confirmed by the Senate, which seems likely, the NLRB will have its first Republican majority in nine years and will also return to full strength at five members.  As cases come before the Board for consideration, the NLRB may reconsider many of the decisions of the Democratic majority Obama Board.  However, the NLRB General Counsel is expected to serve out his four year term through November 3, 2017 and remain in that critical post, in which he decides which unfair labor practice issues are litigated and presented to the Board.

Once at full-strength, the Board is likely to consider a number of significant legal issues, including the NLRB’s standards for determining whether joint employer relationships exist, the standards for evaluating whether handbooks and work rules unlawfully interfere with employees’ rights under the National Labor Relations Act, the Board’s standards for determining what are appropriate units for collective bargaining including a review of “micro-units,” the status of graduate students and research assistants as employees with the right to collective bargaining, and a multitude of other decisions from the past eight years that have more expansively interpreted the National Labor Relations Act.

Chairman Miscimarra has announced that he will not seek reappointment when his term expires on December 16, 2017.  So, in addition to a new General Counsel, the Trump Administration will have to find a replacement for Chairman Miscimarra as well.