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President Donald Trump will nominate attorney Marvin E. Kaplan (R) to be a member of the National Labor Relations Board, the White House announced late June 19.
Trump also is set to select William J. Emanuel (R), a veteran labor lawyer at Littler Mendelson P.C., to join the board, a number of sources told Bloomberg BNA. The White House is expected to announce Emanuel’s nomination this week.
Kaplan has worked since 2015 at the Occupational Safety and Health Review Commission, which reviews the decisions of administrative law judges and adjudicates health and safety disputes between the Labor Department and employers. At the NLRB, he will serve the remainder of a five-year term that ends Aug. 27, 2020. He is taking a seat that has been vacant since Harry I. Johnson (R) left the board in August 2015.
Kaplan if confirmed would be the second Republican on the board, joining Chairman Philip A. Miscimarra and Democrats Mark Gaston Pearce and Lauren McFerran.
Senate Republicans are likely to confirm Kaplan, and the action could come quickly.
“Marvin Kaplan has the qualifications to be an effective member of the National Labor Relations Board. Once Mr. Kaplan’s nomination paperwork is received, the Senate labor committee will move promptly to consider his nomination,” Sen. Lamar Alexander (R-Tenn.), chairman of the Health, Education, Labor and Pensions Committee, said in a statement.
Confirmation of both Kaplan and Emanuel would give Republicans a 3-2 majority with power to revisit and likely reverse rulings that have drawn criticism from business groups and Republican legislators.
Before going to the OSHRC, Kaplan was counsel to the House Education and the Workforce Committee, where his responsibilities included supporting committee oversight of the NLRB.
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 Labor Department’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. Kaplan worked on oversight and investigations involving the NLRB as well as the DOL and other agencies.
In January 2012, Kaplan moved to the 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, while 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 provided legal and policy advice to the committee on labor and employment issues and continued to work on agency oversight. He 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 The 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 arrived at a settlement of the dispute.
Marshall B. Babson, who was a Democratic member of the board from July 1985 to July 1988 and is now special counsel at Seyfath Shaw LLP, told Bloomberg BNA that Kaplan impressed him as “a thoughtful guy” when he worked for the Education and the Workforce Committee.
Kaplan was “keyed into” the labor law issues he worked on and clearly understands the rulemaking process, Babson said.
Just as importantly, Kaplan has had real experience in working through issues and problems with others, he said.
“The question for all of us is how careful and thoughtful will we be in dealing with the NLRB,” Babson said. Drastic funding cuts may make it difficult for the NLRB to accomplish its mission, but sending Kaplan to the board will be a positive development for the agency, he said.
Ronald Meisburg, a former NLRB general counsel and Republican board member who now represents management at Hunton & Williams LLP in Washington, told Bloomberg BNA Kaplan is an excellent nominee.
A number of business associations were quick to join in complimenting Trump’s selection.
Kaplan “is a highly qualified and well-respected labor attorney who should be confirmed without delay,” David French, senior vice president for government relations at the National Retail Federation, said in a statement June 20.
“Marvin Kaplan will begin to restore balance to an agency whose recent and radical decisions and disregard for long standing precedent have injected uncertainty into labor relations to the detriment of employees, employers and the economy,” Coalition for a Democratic Workplace Chair Kristen Swearingen said in a statement.
But William B. Gould, now a professor emeritus of law at Stanford University, expressed reservations about nominating Kaplan.
Gould, a Democrat who was chairman of the NLRB from 1994 to 1998, told Bloomberg BNA he doesn’t know Kaplan but that serving as a staff lawyer for House committees doesn’t provide the experience a board member needs at independent quasi-judicial agency.
Picking congressional staffers and veterans as NLRB nominees has become more common in recent years, Gould acknowledged, but he told Bloomberg BNA “appointments of that kind, whether by Democratic or Republican presidents, aren’t good.”
“Kaplan’s appointment is likely to politicize the Board on behalf of House Republicans whose mission has been to supplant the NLRB as expert agency, a role which Congress has given it since 1935, when its decisions displease them,” Gould said.
Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.
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