As readers of this blog know, the Trump administration began its time in office with two vacancies on the NLRB. After some delay, nominations were finally announced for these positions, and included William Emanuel, a management side labor lawyer for a large, national labor and employment law firm, and Marvin Kaplan, an attorney working for the Occupational Safety and Health Administration. Both Messrs. Emanuel and Kaplan are Republican, and the NLRB has historically had a majority of its members drawn from the party of the President.
On August 3, the U.S. Senate voted 50-48 to confirm Mr. Kaplan. He was sworn in at the NLRB on August 10, taking over the seat previously occupied by Member Johnson (R). This seat had been vacant since August 2015. Member Kaplan’s term runs until August 27, 2020.
A Senate vote on Mr. Emanuel is not yet scheduled. He drew particularly sharp questions during his confirmation hearing from Democratic Senators, including Elizabeth Warren (D-Mass.). Hopefully, the Senate will act upon its return from its August recess.
Meanwhile, Chairman Miscimarra (R) announced earlier this month that he will leave the NLRB when his term expires in December 2017. In a letter to NLRB staff, Chairman Miscimarra cited personal, family reasons for his decision to leave. The employer community will certainly miss Chairman Miscimarra’s presence on the NLRB. How quickly President Trump will nominate a person to replace Chairman Miscimarra is uncertain.
For labor professionals, especially those representing management, these personnel-related developments raise even more uncertainty over when they may see relief from the steady progression of more union-friendly rulings from the Obama NLRB. If the confirmation of Mr. Emanuel is substantially delayed, there will be little time during which a 3-2 majority exists for President Trump’s appointments, before returning to, at best, a tie or to the status quo up to Member Kaplan joining the NLRB. That status quo was a Democratic majority. I will continue to monitor these developments and let you know as significant events occur.