Trump Set to Give Employers a Leg Up at NLRB

GOP majority at federal labor arbiter could overturn controversial Obama era rulings

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June 20, 2017

The Trump administration may give Republicans a majority at the nation's top federal labor regulator for the first time since 2007.

The White House announced on Monday that it intended to nominate Marvin Kaplan, a former chief counsel to the House Oversight and Government Reform Committee, to fill one of two vacancies at the National Labor Relations Board. It has also been reported that the administration is considering appointing William Emanuel, a management-side attorney at Littler Mendelson and member of the conservative Federalist Society, to fill the second vacancy.

If confirmed, the nominees would give the GOP a majority on the five-member board. A White House spokesman said that the administration had "no update" on whether Emanuel would also be formally nominated.

Trump tapped Republican board member Philip Miscimarra to serve as the board's acting chairman in January, but Democrats continue to hold a 2-1 majority at the agency's top ruling body, which oversees union elections and workplace disputes. If confirmed, Kaplan would give the board a 2-2 partisan split, which would still represent a step forward for the GOP by giving them the ability to have 2-1 majorities on three-member panels.

Democrats have held a majority since 2013 and have authored several key decisions advantageous to unions, issuing a series of controversial decisions that overturned decades of precedent. Obama's appointees voted to allow for the formation of micro-unions, held franchises liable for labor violations committed by franchisees and sub-contractors, and allowed graduate students to form unions.

Labor watchdogs said that the new majority would "restore balance" to federal labor law. The International Franchise Association said that the Democratic board's actions have "curtailed job creation" among franchises because of the prospect of joint-employer liability. IFA President and CEO Robert Cresanti, said that Kaplan's appointment could help meet "the needs of employers and employees."

"A more sensible approach to labor policy will help make the American Dream more accessible to aspiring franchise owners and enable franchise brands to propel the whole economy forward," he said in a release. "We are hopeful the Senate will swiftly confirm Kaplan and President Trump will quickly fill the remaining seat so they can restore balance and reason to a labor board that has tipped the scales against the needs of employers and employees for far too long."

Trey Kovacs, a labor expert at the pro-free market Competitive Enterprise Institute, said that filling the board seats "represents a huge opportunity for reform."

"In recent years, the NLRB has pushed out job-killing decisions and regulations favoring the interests of organized labor over individual workers. It is imperative for the Senate to confirm President Trump's nominees so they can bring fairness and predictability to agency decisions," he said in a statement.

Republicans have not had a majority of board seats since 2007, when Democrats blocked President George W. Bush from filling three vacancies at the agency. The Bush administration moved forward with a two-member GOP majority panel, which the Supreme Court eventually ruled was unconstitutional in 2010. The Obama administration also ran afoul of the high court by making unconstitutional recess appointments to the board, meaning that the board did not have the necessary quorum to issue binding decisions from 2008 to 2013.