Senate Confirms Kaplan to NLRB

Confirmation signals the dawn of a more pro-business board

By Allen Smith, J.D. Aug 4, 2017
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​Many National Labor Relations Board (NLRB) decisions issued during the Obama administration are likely to be reversed once the board is fully staffed with a 3-2 majority in favor of employers. The five-member board had leaned toward union interests this year. But now that the Senate on Aug. 2 confirmed Marvin Kaplan to serve on the NLRB with a 50-48 vote, the board is evenly divided—with two pro-union board members and two pro-management members. 

The Senate has delayed voting on the nomination of William Emanuel, who also is pro-management, until after its August recess.

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.

"Historically, Democrat presidents appoint three pro-union and two pro-management members, while Republicans appoint three pro-management and two pro-union members," noted David Pryzbylski, an attorney with Barnes & Thornburg in Indianapolis. "Given President [Barack] Obama served two terms, it has been nearly a decade since pro-management members have enjoyed a 3-2 majority."

He noted, "Even since President [Donald] Trump took office, the pro-union members have continued to issue harsh decisions against employers." Kaplan's confirmation creates "a 2-2 tie at the board, which at a minimum likely will blunt any further extreme pro-union decisions from being issued. Once another pro-management member is confirmed—likely Emanuel—then they will have a 3-2 majority, and we likely will see decisions start swinging more in favor of companies relative to what we've seen in recent years."

Pryzbylski said Kaplan's confirmation proceeded swifter than Emanuel's because Republicans thought that there would be less pushback on Kaplan and that they could get him confirmed before the August recess. "Kaplan largely has worked within the government—most recently as chief counsel of the Occupational Safety and Health Review Commission—while Emanuel primarily has been in private practice and advocated for employers against the NLRB."

William Samuel, director of the governmental affairs department at the AFL-CIO, opposed Kaplan's nomination, stating, "Kaplan has never practiced labor law—his sole experience with labor law is on a policy level, drafting legislation to weaken worker protections under the NLRA [National Labor Relations Act] and holding hearings to criticize the NLRB during the Obama administration."

[SHRM members-only HR Q&A: What is the function of the NLRA?]

Rep. Virginia Foxx, R-N.C., chairwoman of the House Committee on Education and the Workforce, and Rep. Tim Walberg, R-Mich., chairman of the House Subcommittee on Health, Employment, Labor and Pensions, issued the following joint statement on Kaplan's confirmation: "America's workers and job creators need a fully functioning board that upholds our nation's workplace laws in a fair and objective way. We are glad the Senate moved quickly on this timely confirmation, which will help move the board in a new direction. Hopefully, our Senate colleagues will act swiftly to fill the remaining vacancy so we can have a full slate of board members that puts workers—not special interests—first."

Decisions Likely to Be Overturned

Once the board is staffed with three pro-management members, it is likely to overturn many Obama-era NLRB decisions, predicted Robert Boonin, an attorney with Dykema in Ann Arbor, Mich., and in Detroit.

He said that the most obvious changes are likely to be:

Pryzbylski expects that there will be fewer board decisions finding that employees have engaged in protected concerted activity on social media websites. "Just last week, NLRB Chairman Philip Miscimarra issued a dissent in a case where the board overturned the termination of an employee based on a Facebook exchange and stated that he believes the agency's recent approach to these cases yields 'absurd results,' "  he noted.

But he cautioned, "Most reversals of precedent created by the Obama board will have to wait for those issues to work their way to review by the Trump board. That process could take years."

Congressional action could, at least in theory, be much swifter.

 

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