Senate Committee Advances Trump’s NLRB Nominees

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A Senate committee voted 12-11 on July 19 to advance President Donald Trump's nominees, William Emanuel and Marvin Kaplan, for two vacancies on the National Labor Relations Board (NLRB).

The nominees must still be confirmed by a full vote of the Republican-controlled Senate. If confirmed, Republicans will hold three seats and Democrats will hold two seats on the five-member board, giving Republicans their first majority on the board in nearly a decade.

The Senate Health, Education, Labor and Pensions Committee Chairman Sen. Lamar Alexander, R-Tenn., said he hopes the nominees will restore balance to the board. "After years of playing the role of advocate, the board should be restored to the role of neutral umpire," he added.

Emanuel is a management-side attorney with Littler in Los Angeles. He is also a contributing editor to a leading treatise on the National Labor Relations Act, The Developing Labor Law (Bloomberg BNA, 2012), and has served on an NLRB advisory committee regarding agency procedures.

Kaplan serves as counsel for the Occupational Safety and Health Review Commission and previously served as workforce policy counsel for the House Education and the Workforce Committee.

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

The nominees were supported by Republicans and opposed by Democrats who raised concerns about their pro-management positions. Both candidates took a little heat from Democrats at the confirmation hearing on July 13, noted James Plunkett, an attorney with Ogletree Deakins in Washington, D.C.

During the July 19 session, Sen. Patty Murray, D-Wash., said she had serious concerns about their records of "undermining workers and putting corporate interests first." She said the middle class is strengthened by unions that give workers the ability to stand up for themselves and that lately the scales have been tipped too heavily toward those at the top. A strong NLRB is critical to rebuilding the middle class and putting workers first, she added.

Plunkett told SHRM Online that Emanuel and Kaplan will likely be confirmed by the full Senate with a party-line vote.

Donald Schroeder, an attorney with Foley & Lardner in Boston, also thinks it's highly likely that both candidates will be confirmed. He pointed out that lawmakers have a strong desire to fill these vacancies and make sure there is a full board. "There has been so much controversy over the last few years without a full board," he said.

Key Issues

If Emanuel and Kaplan are confirmed, how will the new Republican majority shape NLRB decisions? Schroeder said he expects the board will undo some Obama-era rulings, but that this will take time.

Plunkett and Schroeder said that there are three major issues that most employers and labor attorneys are watching:

  • Joint Employers. The NLRB's controversial Browning-Ferris decision expanded joint-employer liability. The board found that "indirect control" over working conditions can makes two separate employers joint employers, whereas the previous standard required an employer to have "actual, direct, and immediate" control. The D.C. Circuit Court of Appeals has yet to rule on an appeal of the board's decision in that case, but the board could choose to hear a new case that revisits the decision.
  • Micro-Unions. In its Specialty Healthcare decision, the NLRB allowed unions to target small subsets of employees. Plunkett said this could balkanize a workforce and create a perpetual state of bargaining for employers that have to deal with multiple, small bargaining units. It may also hinder employee growth and limit opportunities for cross-training because an employee in one unit might not be able to easily move to other units, he said.
  • Ambush Elections. In 2015, the NLRB made changes to union elections procedures. The regulation, sometimes referred to as the "ambush election" rule, significantly shortened the time between when a union files a petition for an election and when the election can be held. This rule can limit an employer's ability to communicate with employees about the pros and cons of unionization and can deprive employees of their opportunity to hear the employer's side of the story, Plunkett explained. The rule doesn't give employers enough time to address the petition, said Schroeder, who expects to see this rolled back.

Employers may also be looking for decisions on class-action waivers in employment arbitration agreements, Plunkett said. The Democrat-controlled NLRB opposed such waivers, asserting that they infringe on employees' right to engage in concerted activity. Federal appeals courts have reached different conclusions on the matter, and the U.S. Supreme Court will soon weigh in. It will be interesting to see if the board quickly revisits the issue, Plunkett noted, adding that the board would have to find a case with the right facts and circumstances and can't just issue a declaratory opinion on the matter.

It's also likely that the new board will have a more restrictive view of what constitutes protected concerted activity on social media, Schroeder noted.

"I think we're going to see a real change in the direction of the NLRB, but ... it's not going to happen overnight," he said.

 

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