Labor Board Front-Runners Down to Two

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By Chris Opfer, Ben Penn and Hassan A. Kanu

Labor lawyers Marvin Kaplan and William Emanuel are the front-runners for two openings on the National Labor Relations Board, sources familiar with the situation told Bloomberg BNA.

Kaplan is an attorney for the Occupational Safety and Health Review Commission, an independent federal agency that hears cases involving alleged workplace safety violations and adjudicates disputes between the Labor Department and employers. Emanuel is a management-side lawyer at Littler Mendelson.

Minnesota labor lawyer Doug Seaton, who unions had expressed concerns over, was dropped from consideration for one of two openings on the board, according to sources. The sources spoke on the condition of anonymity.

Emanuel and Kaplan, who sources said have interviewed for the positions, declined Bloomberg BNA’s requests for comment. Seaton told Bloomberg BNA that he met with various Trump administration officials about the board openings but hasn’t heard whether he’s still in consideration.

“I’ve been interviewed and told I was in the running, or words to that effect, and now I’m waiting on the decision making,” Seaton said April 26.

Seaton was dropped from the shortlist before a recent report surfaced about his work to stop unionization drives for a number of businesses, sources said. Seaton declined to comment further when reached by Bloomberg BNA April 27, saying “that’s entirely up to the administration.”

“We don’t comment on personnel issues,” White House spokesman Ninio Fatalvo told Bloomberg BNA April 27.

The five-seat board currently has only three members: Chairman Philip A. Miscimarra (R) and Members Mark Gaston Pearce (D) and Lauren McFerran (D). President Donald Trump is expected to name two Republicans to fill the open slots.

The board is likely to consider a number of significant legal issues once the vacancies are filled. They include questions about the extent to which businesses and other entities may be considered joint employers for liability purposes and whether “micro-units” of workers within a larger workplace can unionize.

Unions Concerned

Seaton’s inclusion on the shortlist raised concerns from labor groups over his role advising employers how to avoid unionization. Because Republicans and the management bar are largely in lockstep on workplace issues, however, worker advocates expect a GOP-majority board without Seaton as a member to still try to peel back various pieces of former President Barack Obama’s labor agenda.

“We were very troubled, based on his history of working to undermine labor law for years,” Shane Larson, legislative director for the Communications Workers of America, said of Seaton. “But the other names we’ve seen floated, while not necessarily as egregious, are still troubling.”

Seaton could have created some optics problems for a Trump administration that’s still trying to play nice with labor unions. Labor leaders have expressed interest in working with the White House on trade policy and infrastructure spending, and at least three worker groups endorsed labor secretary nominee Alexander Acosta before he was confirmed by the Senate April 27.

Emanuel is a Littler shareholder, based in Los Angeles. He has worked with a wide range of business clients, according to the firm’s website, including by challenging state laws allowing unions to enter employers’ private property.

Kaplan previously served as the Republican workforce policy counsel for the House Education and the Workforce Committee.

To contact the reporter on this story: Chris Opfer in New York at copfer@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com

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