Trump NLRB Nominees Don’t Like Unions, or Even Board, Dems Say

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By Hassan A. Kanu

Democrats on the Senate labor committee grilled President Donald Trump’s nominees for two seats on the federal labor board at a hearing, asking about issues before the board and whether the two attorneys are biased in favor of employers.

The July 13 hearing was held to consider the nominations of Marvin Kaplan and William Emanuel to the National Labor Relations Board.

Sen. Patty Murray (D-Wash.), ranking member of the panel, said the stakes are high for workers. In the past few decades, “we’ve seen a decline in unions and union membership across the country, and with that the middle class has shrunk,” Murray said.

“So I believe it’s critical now more than ever that we do everything we can to ensure that every worker has a fair shot. But Mr. Emanuel and Mr. Kaplan, as I look at your records, I see patterns of anti-worker, anti-union, even anti-NLRB measures,” she said.

Among the issues Democrats raised was Emanuel’s decadeslong career working on behalf of employers. They also noted that as a staff lawyer for a House panel, Kaplan helped draft versions of legislation that many worker groups consider anti-labor, including bills to extend the amount of time necessary for employees to form a union and to rescind permission for sub-groups of employees within a larger group to unionize independently.

Still, Kaplan and Emanuel are expected to be confirmed by the Republican-controlled Senate. The Senate Health, Education, Labor and Pensions Committee will hold votes on July 19 at 10 a.m.

Nominee Shares Frustrations of Republicans

On the Republican side, Sen. Bill Cassidy (La.) said the board under President Barack Obama issued decisions that “have made it difficult for small business to grow,” and the lawmaker asked Kaplan and Emanuel about their position on those issues.

Republican lawmakers and business groups have long sought to undo a number of board rules and policies from the past few years, including allowing “micro units” of employees to unionize; rules that have sped up union elections; and a decision expanding the circumstances when multiple organizations can be considered a worker’s employer.

Kaplan said he “shares some of the frustration” Cassidy and other Republicans have expressed.

“In the event those cases come before us, I can assure you I will look at them in an impartial manner…but I’m not inclined to judge something” beforehand, he said.

A number of Democrats later noted that both nominees have written publicly about their positions on certain issues that are likely to come before the board.

Emanuel has “written extensively” on whether employers can encourage workers to waive their rights to class actions or prevent union workers from protesting on employer property, and on bargaining unit sizes, Sen. Elizabeth Warren (D-Mass.) said.

“Some of your views are pretty extreme and go to the heart of cases that the NLRB might decide,” she said, asking whether he would recuse himself from those cases because the writings were done as a private citizen and academic.

Emanuel said he doesn’t believe “recusal will apply” to individual issues in cases, as opposed to having to recuse from a case because of the parties involved.

Issue of Trump and Conflicts Enters Hearing

The two nominees were bundled into the hearing before the Senate HELP Committee with Patrick Pizzella, nominee for deputy labor secretary.

Democrats objected to the combined hearing at the outset. The lumping together of nominees for different agencies caused some hiccups, including one instance when Pizzella told Cassidy that it would be more appropriate to redirect a question to the NLRB nominees because the issue isn’t in DOL’s purview.

Murray noted that Trump recently settled cases before the NLRB and that there are still a number of open cases before the board involving his various businesses.

“This is really an unprecedented situation” created by Trump’s “refusing” to fully separate from his business properties, Murray said. She asked if this would cause any ethical problems for the nominees.

“The board is entirely independent,” Kaplan said. “I can pledge that I will go down to my ethics office to ensure there’s no issues with us participating in a case or me adjudicating a case.”

He added that “the name on the business or the name of the owner” shouldn’t matter as “a fundamental matter.”

Dems Raise Concerns About Past Work

Murray and others at the hearing said Emanuel, a management-side practitioner and shareholder at Littler Mendelson PC, has advocated on behalf of employers for “decades,” and implied that much of his work amounts to union-busting.

They focused on Kaplan’s lack of experience as a labor board practitioner and noted that while a House panel staff lawyer, he prepared and selected witnesses for hearings in which GOP lawmakers criticized the NLRB’s core mission.

Emanuel said his work advising employers of what they’re required to do under the National Labor Relations Act has “furthered the purpose of the statute, as I see it.” When asked explicitly if he’d represented any employees or worker groups, he replied that it’s “not feasible” for a labor law practitioner to represent both sides “for a number of reasons.”

“I’m just very honored to be nominated and hope I’m confirmed,” Emanuel told Bloomberg BNA after the hearing, declining to comment further.

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

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

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