Short List of Possible Trump NLRB Candidates Reported

Jackson Lewis P.C.
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President Donald J. Trump has narrowed his list of candidates to fill the two open seats on the five-member National Labor Relations Board to Marvin Kaplan, William Emanuel, and Douglas Seaton, according to Bloomberg BNA. Emanuel and Seaton are labor attorneys and Kaplan is counsel to the Commissioner of the Occupational Safety and Health Review Commission.

A full NLRB is expected to result in a pro-business 3-to-2 majority – the first such majority since December 16, 2007, when Republicans Peter C. Schaumber, Peter N. Kirsanow, and Robert J. Battista were Members. Nominees to the NLRB require Senate confirmation.

According to his resume, as Workforce Policy Counsel on the House Education and Workforce Committee from January 2012 to September 2015, Kaplan “led efforts to fight DOL overtime and 2012 unconstitutional NLRB recess appointments” and “[d]rafted … the Workforce Democracy and Fairness Act,” legislation that sought to overturn the Board’s 2012 Specialty Healthcare bargaining unit decision and “quickie election” rulemaking by amending the National Labor Relations Act.

Emanuel describes himself as having “extensive experience representing employers in traditional labor matters….”

Seaton’s views on labor issues are clear. In an interview with Bloomberg BNA, he said, “the board [sic] 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.”

The new Board, once appointed and confirmed, likely will revisit recent NLRB rules and decisions, including those covering (1) class action waivers, (2) joint employer, (3) temporary workers, (4) quickie elections, (5) expansion of protected concerted activity (e.g., its impact on workplace policies), (6) definition of appropriate bargaining units, and (7) status of college/university faculty and student athletes.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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