On July 13, the National Labor Relations Board took another step to shift away from the staunchly pro-union agency that has existed over the last eight years. This occurred when the Senate labor committee considered the nominations of Marvin Kaplan and William Emanuel, whom the Trump Administration had put forward for the two vacant Board seats.
Kaplan and Emanuel should afford significantly more weight to employers’ interests than the Board had under President Obama. Emanuel has represented employers in labor matters for decades, and Kaplan has helped draft legislation that many consider to be employer-friendly.
It appears they both will survive the nomination process. Although Democrats asked the nominees several pointed questions, neither Kaplan nor Emanuel gave any answers that should impede their nominations. When the committee votes on July 19, it likely will send their nominations to the Senate floor for a final confirmation vote. At that point, most expect the Republican-controlled Senate to confirm them.
It will take several more months, however, for the Board to complete its shift. The Board’s current General Counsel (and an Obama appointee), Richard Griffin, will remain at his post until November. Because the General Counsel determines which cases the Board will investigate and ultimately decide, it will be difficult for a “Trump Board” to make significant changes while Griffin remains in this position.
After the Board completes its shift, however, it will address several issues that are important to employers. For example, many expect that the Board will:
- Find a more balanced approach for deciding which “concerted activities” receive protection under Section 7 of the National Labor Relations Act;
- Impose reasonable limits on how unions may shape “micro bargaining units” as a way to improve their chances in union elections;
- Reassess the Obama Board’s Browning-Ferris decision, which made it easier for unions to organize temporary laborers, other contract employees, and employees of franchisors and franchisees; and
- Decide, in a more balanced manner, new cases about emerging workplace technologies (including how unions may use such technology to organize employees).
Employers should continue to follow this confirmation process, as well as the likely appointment of a new General Counsel this Fall. When the reconstituted Board ultimately starts deciding new cases, it should do so in a way that better accommodates employers’ interests.