Trump to Nominate Kaplan, Emanuel for Key Labor Board Spots

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By Josh Eidelson, Chris Opfer and Ben Penn

The Trump Administration has submitted attorneys Marvin Kaplan and William Emanuel for FBI background checks and plans to nominate them by June to fill the two vacant slots on the National Labor Relations Board, sources briefed on White House plans told Bloomberg May 10.

The administration hopes to have the new members confirmed by the Senate before the August recess, the sources said. Business lobbyists and other stakeholders have been prodding the White House to fill the seats, a move they say will help to peel back various Obama administration labor initiatives.

Kaplan and Emanuel, if confirmed, would give the five-member board a Republican majority. The NLRB is widely expected to use that majority to reconsider big-ticket workplace issues, including rulings that expanded joint employer liability and recognized “micro-units” for collective bargaining purposes.

White House spokesman Ninio Fetalvo declined to comment when contacted by Bloomberg BNA.

“We’re hopeful that we see [these] names as soon as possible,” Matthew Haller, a senior vice president at the International Franchise Association, told Bloomberg May 10. “Our understanding is that they’re under the FBI investigation, which is the last stage in the process, and we’ve been lobbying and encouraging nominees to move through as quickly as possible.”

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.

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.

Appointments Would Flip Board Majority

Prominent conservatives have urged the Trump administration to move more quickly to flip the board’s majority from Democratic to Republican by filling the vacancies, which have been open since before Trump took office. Days after Trump’s inauguration, the Wall Street Journal published an editorial headlined “Don’t Ignore the Labor Board” that warned against “dawdling” over appointments there.

In March, the U.S. Chamber of Commerce wrote a letter to the White House arguing that “the quicker the two vacant Board seats are filled, the quicker a newly-constituted Board can embark upon revealing the labor law playing field” and “begin undoing the Obama NLRB’s radical policy shifts” on workplace issues.

The Competitive Enterprise Institute in its April rundown of “the good, the bad, and the ugly” of Trump’s first 100 days on labor policy cited the lack of NLRB appointments as the “ugly.”

President Barack Obama took office with three seats open on the NLRB and announced his first nominations in April of 2009. Following resistance from Senate Republicans, he used recess appointments to place them on the Labor Board in March of 2010.

A subsequent attempt by Obama to use the recess appointment power to fill NLRB vacancies in 2012 was shot down by the U.S. Supreme Court in 2014. In 2013, Senate Democrats eliminated the filibuster for most presidential appointments, leaving the minority party unable to halt NLRB appointments.

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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