Trump to Nominate Big Law and Government Lawyer for Labor Board Spots

May 10, 2017, 9:19 PM

By Josh Eidelson, Chris Opfer and Ben Penn, Bloomberg BNA

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

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.

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

White House spokesman Ninio Fatalvo 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 News today.

“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. Emanuel is a management-side lawyer at Littler Mendelson.

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 releveling the labor law playing field” and “begin undoing the Obama NLRB’s radical policy shifts” on workplace issues.

In April, the Competitive Enterprise Institute in its 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.

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