Trump NLRB Nominees Advance Out of Committee

Party-line vote gives GOP chance at controlling labor board for first time since 2007

Sen. Lamar Alexander / Getty Images

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The Senate Committee on Health, Education, Labor, and Pensions approved President Donald Trump's two nominees to the federal government's top labor arbiter on Wednesday.

The committee voted 12-11 to advance the nominations of Marvin Kaplan, former counsel to the House Oversight and Government Reform Committee, and William Emanuel, a member of the conservative Federalist Society and management-side labor attorney at Littler Mendelson, to the National Labor Relations Board (NLRB). If confirmed, Republicans will gain a majority on the board, which oversees labor disputes and union elections, for the first time since 2007.

Democrats currently hold a 2-1 majority at the agency's 5-member board. Trump appointed Republican board member Philip Miscimarra to serve as the acting chairman of the board in January, but did not announce his additional nominees until June.

The Democrats have controlled the board since 2013. President Obama's appointees have advanced a number of controversial rulings in that time that critics say tilted the scales of employment law in favor of unions. The Obama board has ruled in favor of allowing labor organizers to form micro-unions inside of workplaces, classified graduate students as employees, and held franchises liable for labor violations committed by franchisees and sub-contractors—a standard known as "joint employer."

Business groups embraced the nominations of Kaplan and Emanuel. Cicely Simpson, an executive vice president at National Restaurant Association, said that confirmation of the pair would "restore balance" to the board.

"Marvin Kaplan and William Emanuel will restore balance and fairness to the National Labor Relations Board," she said in a statement. "The Board is currently reviewing extremely important issues, including joint employment liability, that impact restaurants and other small businesses, and we urge swift confirmation of these qualified nominees."

Committee Chairman Sen. Lamar Alexander (R., Tenn.) said in a release that the board's mission should be to act as a "neutral umpire," rather than advance an agenda. He said that Kaplan and Emanuel agree with that mission and called on his colleagues to confirm the pair.

"My hope is that filling the two open seats on the National Labor Relations Board will restore the board to its intended purpose of acting as a neutral umpire after years of playing the role of advocate," he said. "It is important to American employees and employers alike that the Senate quickly confirm Mr. Kaplan and Mr. Emanuel to bring balance to the board and stability to our nation's workplaces."

Democrats and labor groups have mobilized against the nominations in recent days. Sen. Al Franken (D., Minn.), who sits on the committee, spoke out after the vote to defend the united opposition from the committee's Democrats. He accused the nominees of being evasive and said he was "unimpressed" by interviews with Kaplan and Emanuel, who he singled out for defending companies involved in labor disputes.

"We're picking people to sit on the NLRB which has vast power over labor decisions. … These are very important positions—they're extremely important positions," he said. "Mr. Emmanuel has defended corporations and defended their right to invoke and use mandatory arbitration clauses and to prevent employees and classes of employees from going to court."

The AFL-CIO, the nation's largest and most politically influential private sector union, sent letters to every senator on Tuesday calling on them to oppose Kaplan and Emanuel. The union acknowledged the president's right to appoint members of his own party to the board—which was designed to be partisan, so long as two members came from the minority party—but said they did not think the nominees would approach labor law cases "with an open, unbiased mind."

"The clear purpose and mission of the agency to which they have been nominated—to protect and encourage the practice of collective bargaining—nothing in the background or statements of either nominee provides any assurance that either Kaplan or Emanuel would be guided and motivated by this basic mission," the AFL-CIO letter said. "Some in Congress and in the business community have launched relentless attacks on the NLRB and sought to get key NLRB decisions and actions overturned. Kaplan and Emanuel have been part of these attacks, and they said nothing at the confirmation hearing to distance themselves from these attacks."

A vote is not yet scheduled on the confirmation hearing in the full Senate.

Bill McMorris   Email Bill | Full Bio | RSS
Bill McMorris is a staff writer for the Washington Free Beacon. He joins the Beacon from the Franklin Center for Government and Public Integrity, where he was managing editor of Old Dominion Watchdog. He was a 2010 Robert Novak Fellow with the Phillips Foundation, where he studied state pension shortfalls. His work has been featured on CNN, Fox News, The Economist, Colbert Report, and numerous print publications and radio stations. He lives in Alexandria, Va, with his wife and three daughters. His Twitter handle is @FBillMcMorris. His email address is mcmorris@freebeacon.com.

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