Hunton Retail Law Resource

On August 2, 2017, the U.S. Senate confirmed one of President Trump’s two management-side appointees, Marvin Kaplan, to the National Labor Relations Board (“NLRB”) in a contentious vote along party lines. Kaplan was sworn in on August 10, 2017, for a term ending on August 27, 2020. 

As employers are aware, during the majority of President Obama’s term, the NLRB was controlled by labor-side appointees. During this time, the NLRB enacted many controversial changes impacting employers, including, to name just a few, expedited election rules, a new joint employer standard under its Browning-Ferris decision and permitting micro-unit bargaining units under its Specialty Healthcare and subsequent decisions.

With Kaplan’s appointment, the NLRB now consists of a 2-2 split between management-side and labor-side appointees. While this makes it unlikely that the current NLRB will overturn any of its controversial precedent, as the NLRB will refrain from overturning precedent without a majority, another management-side appointment is pending before the Senate. Should he be confirmed, the NLRB would have an opportunity to roll-back certain pro-union measures taken by the NLRB over the last five plus years.

An interesting wrinkle is that the term of the management-side Chairman, Philip Miscimarra, will expire in December 2017. Whether and how quickly President Trump will be able to replace Miscimarra through the Senate confirmation process remains to be seen. Regardless of how this developing situation plays out, employers may experience an NLRB less hostile to management interests. Retailers might consider this factor in deciding whether, and to what extent, to litigate and appeal matters to the NLRB.