Add the name Peter Kirsanow, a conservative Republican management-side labor lawyer practicing in Cleveland, Ohio, who was a member of the NLRB under President Bush through a recess appointment from January 4, 2006 to December 31, 2007, to the list of possible nominees by President-elect Trump to fill the two vacancies on the five-member National Labor Relations Board. Kirsanow, who has met with President-elect Trump, was considered for Secretary of Labor, but ultimately not offered the job – Andrew Puzder, CEO of CKE Restaurants, Inc. has been nominated. Kirsanow also is a member of the U.S. Commission on Civil Rights.

Kirsanow has publicly stated his opposition to the NLRB’s Browning-Ferris joint employer decision, which, to the detriment of employers (especially franchisors and franchisees), makes it easier for unions to prove that two organizations jointly employ the employees of one of them. While on the Board, Kirsanow voted with the three-person majority in the Oakwood Healthcare decision, in which the NLRB clarified the criteria for finding an employee to be a supervisor, and thus, excluded from protection afforded by the National Labor Relations Act. The dissent in that case said of the decision, “[t]oday’s decision threatens to create a new class of workers under Federal labor law: workers who have neither the genuine prerogatives of management, nor the statutory rights of ordinary employees.” Kirsanow went even further than the majority, finding that less evidence was required to be shown than his majority opinion colleagues believed was necessary to satisfy the independent judgment criterion.