Trump Aims to Fill Key Labor Board Seats This Week

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By Chris Opfer, Ben Penn,Lawrence E. Dubé, and Hassan A. Kanu

Republicans could have their first majority on the National Labor Relations Board in almost a decade with the expected nomination of lawyers William Emanuel and Marvin Kaplan.

The Trump administration plans to make the announcement as soon as this week, sources familiar with the situation told Bloomberg BNA.

If confirmed by the Senate, the two would join Chairman Philip A. Miscimarra (R) and Republicans would outnumber Democrats on the five-seat board for the first time in more than nine years. The board is expected to use that advantage to reverse course on a wide range of decisions issued during the Obama administration.

“Its been a short-list of two for some time now,” Patrick Semmens, a spokesperson for the National Right to Work Legal Defense Foundation, told Bloomberg BNA June 13. “We’re eager for the formal nominations because there’s a lot of work to do undoing many of the overreaches of the Obama NLRB.”

The NRTW provides free legal representation to anti-union employees. The organization often brings cases before the NLRB, Semmens said.

“We have no personnel announcements at this time,” a White House spokesman said in response to a Bloomberg BNA inquiry.

Emanuel is a management-side lawyer at Littler Mendelson, based in Los Angeles. He has worked with a wide range of business clients, including by challenging state laws allowing unions to enter employers’ private property, according to the firm.

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

Confirmation Timing Uncertain

Business groups and Republican lawmakers in recent weeks urged the White House to get the ball rolling by filling the two open board seats. A crowded congressional calendar and looming August recess mean Emanuel and Kaplan’s Senate confirmation could be slow going.

“The board continues to this day to issue rulings, often 2-1, favoring union organizers against independent worker’s who don’t want to join a union,” Semmens said. “Nominating two people is part of undoing that, and a prompt confirmation would be in order.”

Conservative groups and the business community have identified a host of other issues they believe a majority-Republican board should and will undo.

William Gould, a Stanford Law School labor professor and a former Democrat board chairman, told Bloomberg BNA the board in recent years has generally interpreted federal labor law “consistent with the basic objectives of the National Labor Relations Act.” Gould said delays in the board nomination process could slow the Trump administration’s labor agenda.

“This administration has been so slow to fill any positions and I think they’ve wasted a lot of time, generally speaking,” Gould said. “It could be that that will affect the ability of the administration to get their nominations confirmed promptly.”

Emanuel Involved in Class Action Question

Emanuel has extensive experience representing businesses on federal labor law issues and before the NLRB. That includes a hotly contested dispute over class action waivers in employment contracts.

The veteran attorney, along with other lawyers from Littler Mendelson, filed an amicus brief for the Coalition for a Democratic Workplace in D.R. Horton, Inc. v. NLRB . The coalition supported home-building company Horton, which persuaded the U.S. Court of Appeals for the Fifth Circuit that employers can require workers to waive their rights to class and collective actions without running afoul of federal labor law.

The NLRB has held to its position that class and collective action waivers violate the National Labor Relations Act, despite the appeals court’s ruling. The U.S. Supreme Court will have an opportunity to resolve the issue within the next year. The justices agreed to hear NLRB v. Murphy Oil USA, Inc., in which the board followed Horton.

Emanuel has worked on two other cases on the class waiver issue that are before the high court.

In Ernst & Young LLP v. Morris and Epic Systems Corp. v. Lewis , appellate courts supported the view that the forced waivers aren’t valid under the NLRA and therefore don’t require enforcement under the Federal Arbitration Act. Emanuel signed an amicus brief that business groups filed in both cases, repeating the argument that the NLRB’s stance on the class and collective action waivers is erroneous.

Emanuel earned a bachelor’s degree from Marquette University and a law degree from Georgetown University. He was admitted to the bar in 1965. Before joining Littler Mendelson, he practiced management labor law at several other firms, including Morgan, Lewis & Bockius.

Kaplan Worked on Tribal Labor Bill

Kaplan, who earned a bachelor’s degree from Cornell University and a law degree in 2006 from Washington University in St. Louis, went to work in the DOL’s Office of Labor-Management Standards in 2007. He moved to the House Oversight and Government Reform Committee in 2009 and served as a staff lawyer for two years.

In January 2012, Kaplan moved to the House Education and the Workforce Committee, where he drafted labor and employment legislation, including the Tribal Labor Sovereignty Act and the Workforce Democracy and Fairness Act. The tribal affairs bill was intended to limit the NLRB’s jurisdiction over tribal-owned businesses. The Workforce Democracy and Fairness Act would have changed NLRB procedures and unit determination principles in union representation cases. Neither bill was passed but both have been reintroduced in the current Congress.

Kaplan also requested agency documents and dealt with NLRB officials during the Education and the Workforce panel’s inquiry into a controversial unfair labor practice complaint against Boeing Co. The board’s then-Acting General Counsel Lafe E. Solomon authorized a complaint that the aircraft manufacturer had unlawfully moved some production work from Washington to South Carolina. The NLRB case was withdrawn after Boeing and the International Association of Machinists reached a settlement.

Since September 2015, Kaplan has served as a counsel and chief counsel at the OSHRC, which reviews the decisions of administrative law judges and adjudicates health and safety disputes between the DOL and employers.

To contact the reporter on this story: Chris Opfer in New York at copfer@bna.com; Ben Penn in Washington at bpenn@bna.com; Lawrence E. Dubé in Washington at ldube@bna.com; Hassan A. Kanu in Washington at hkanu@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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