NLRB Change on the Horizon

AUGUST 10, 2017

Prior to departing from Washington for its August recess, the Senate confirmed Marvin Kaplan to serve on the National Labor Relations Board (NLRB); however, President Trump’s other nominee – William Emanuel – will have to wait until after Labor Day for consideration by the full Senate.

Both men are Republican lawyers with extensive experience and backgrounds in labor law.

If the Senate confirms Mr. Emanuel, it would shift the current composition of the five-member NLRB to Republican control, as the current Chairman, Phillip Miscimarra, also is a Republican. However, Miscimarra recently stated that he did not want a second term on the NLRB after his current term expires on December 16, so that majority may only last until December, if Mr. Emanuel is confirmed.

Additionally, it was recently announced that President Trump is considering Peter B. Robb (a management-side labor attorney) to serve as the NLRB’s General Counsel. If confirmed, Robb would not assume that role until this November when current General Counsel Richard F. Giffin’s four-year term expires. The NLRB General Counsel is independent from the Board and leads investigations of potential labor law violations and subsequent prosecution, if warranted.

The change in composition of the NLRB will likely bring with it a change in direction, as it has been issuing union-friendly opinions for the years it was under Democratic control during the Obama administration.

For example, the NLRB in a 3-2 decision in 2015, overturned 30 years of precedent and certainty for what constitutes a “joint-employment” relationship.

Additionally, the NLRB has continually expanded the scope of Section 7 of the National Labor Relations Act, which has made it more difficult for employers to safeguard propriety information and implement reasonable workplace rules and regulations.