Kaplan Nomination Called Way to ‘Stop the Bleeding’ at NLRB

President Donald Trump’s announcement that he will nominate Marvin Kaplan, currently chief counsel of the Occupational Safety and Health Review Commission, to one of two vacant seats on the National Labor Relations Board (NLRB) is being hailed by probusiness interests as a way to bring balance to the Board.

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Kevin C. McCormick, an editor of Maryland Employment Law Letter and attorney with Whiteford, Taylor & Preston L.L.P. in Baltimore, called the nomination “a smart move” by the Trump administration because Kaplan has the “pedigree” needed for confirmation to and service on the Board.

Since Kaplan’s background isn’t in the private sector, “they can’t call him a union buster,” McCormick said, adding that Kaplan is likely heading for easy confirmation by the Senate.

If Kaplan is confirmed, the NLRB will have two Republicans, two Democrats, and one vacant seat. Currently, the Board is led by Chairman Philip A. Miscimarra, a Republican, and Mark G. Pearce and Lauren McFerran, both Democrats. Having another Republican on the Board will at least “level the field” until the last vacancy is filled, McCormick said, adding that Republicans haven’t had control of the NLRB since 2007.

Getting a 2-2 party split will “stop the bleeding,” McCormick said, explaining that the Board may begin to roll back some decisions business interests consider overly aggressive and intrusive. For example, he said the Democratic-majority Board was “very aggressive in expanding [its] role in a nonunion setting.”

Having just three members on the Board effectively made Miscimarra the “great dissenter,” McCormick said, since he was largely reduced to writing dissents to NLRB decisions.

One name that has surfaced for the other vacancy is William Emanuel, a lawyer for the large management-side employment law firm Littler Mendelson. McCormick expects both Kaplan and Emanuel to be confirmed, but Emanuel’s background means he won’t be well received by Democrats. Therefore, putting Kaplan through the process first is a smart move since his nomination isn’t likely to generate as much rancor.

If Kaplan and Emanuel are eventually confirmed, they can “reset the chess pieces,” McCormick said, so that the Board will focus on union employment settings instead of delving into nonunion settings.