Trump NLRB Shortlist Down to Three

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By Chris Opfer and Ben Penn

Three lawyers are on the Trump administration’s shortlist to fill a pair of vacancies at the National Labor Relations Board, sources familiar with the situation told Bloomberg BNA Feb. 22.

Marvin Kaplan (Occupational Safety and Health Review Commission), William Emanuel (Littler Mendelson) and Doug Seaton (Seaton, Peters & Revnew) are the leading candidates for the openings, which are expected to give the NLRB its first Republican majority in nine years.

The vacancies come as the board is likely to grapple with a number of significant legal issues, including 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.

The five-seat board currently has only three members: Acting Chairman Philip A. Miscimarra (R) and Members Mark Gaston Pearce (D) and Lauren McFerran (D).

Kaplan and Emanuel each recently interviewed for the openings with White House officials, according to sources. Seaton told Bloomberg BNA Feb. 22 that he has applied for a job at the NLRB and that he has had conversations about the board vacancy. However, he declined to specify whether he’s been interviewed by the White House.

“No personnel decisions at this time,” White House spokesman Ninio Fetalvo told Bloomberg BNA via e-mail when asked to comment.

Two From Private Practice

Kaplan is currently counsel to the commissioner of the OSHRC. He previously served as the Republican workforce policy counsel for the House Education and the Workforce Committee.

Kaplan didn’t immediately respond to a message left at his OSHRC office. The OSHRC is an independent federal agency that hears cases involving alleged workplace safety violations and adjudicates disputes between the Labor Department and employers.

Emanuel, who declined to comment for this story, is a shareholder at management law firm Littler Mendelson PC in Los Angeles. He has represented business groups seeking to invalidate state laws that his clients say allow unions to trespass on their property.

Seaton represents employers before the NLRB as an attorney at Seaton, Peters & Revnew in Minneapolis—a firm he founded in 1995. He was previously counsel to the Minnesota House Labor Committee.

“The board has gone very, very far to the left or to the pro-union side of things, and I’d be happy and honored if I could help bring it back to the middle,” Seaton told Bloomberg BNA.

Zachary Fasman, a partner with management law firm Proskauer Rose LLP in New York, also has been rumored to be in the mix for a board spot. Fasman sued the NLRB on behalf of business groups seeking to overturn the board’s Specialty Healthcare decision recognizing a micro-unit of certified nursing assistants for bargaining purposes (see related story).

To contact the reporters on this story: Chris Opfer in New York at copfer@bna.com; Ben Penn in Washington at bpenn@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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