Employment Law

Kaplan Appointed Acting Chair of NLRB

Marvin E. Kaplan has been named acting chairman of the National Labor Relations Board (NLRB), the Board announced on December 22.NLRB

President Donald Trump named Kaplan acting chairman. Former Chairman Philip A. Miscimarra’s term ended on December 16.

The departure of Miscimarra, a Republican, leaves the Board with four members and one vacancy. While he was on the Board, it had a 3-2 Republican majority that was active in rolling back actions taken by the Obama-era Board. Among the actions taken in December, the Board set in motion the process to possibly modify or rescind the controversial “quickie” union election rule and reversed decisions on joint employment and the organization of “microunits” of workers.

The current Board is made up of Republicans Kaplan and William J. Emanuel and Democrats Mark Gaston Pearce and Lauren McFerran. To fill the vacancy, Trump will make a nomination, which will have to be confirmed by the Senate.

Kaplan joined the Board in August after being nominated by Trump in June. His addition to the Board prompted praise from probusiness interests. Kevin C. McCormick, an editor of Maryland Employment Law Letter and attorney with Whiteford, Taylor & Preston L.L.P. in Baltimore, called Kaplan’s nomination “a smart move” by the Trump administration because Kaplan has the “pedigree” needed to serve on the Board.

Kaplan’s pedigree includes serving as chief counsel to the chairman of the Occupational Safety and Health Review Commission. Before that, he served as counsel for the House Committee on Oversight Government Reform and as policy counsel for the House Committee on Education and the Workforce. He also worked at the U.S. Department of Labor’s (DOL) Office of Labor Management Standards and with the law firm McDowell, Rice, Smith & Buchanan.

At the time of Kaplan’s nomination, McCormick said that Kaplan’s extensive work in government instead of in the private sector made him a smart choice to win confirmation because he couldn’t be labeled “a union buster.” The other Trump nominee on the Board, Emanuel, faced that criticism because of his work with the large management-side law firm Littler Mendelson.

The Board will have another vacancy when Pearce’s term expires on August 27, 2018. McFerran’s term expires on December 16, 2019. Kaplan’s term ends on August 27, 2020, and Emanuel’s term expires on August 27, 2021.

Tammy Binford writes and edits news alerts and newsletter articles on labor and employment law topics for BLR web and print publications.