The Latest On NLRB Appointees

By Kamer Zucker Abbott

August 15, 2017

The National Labor Relations Board (NLRB) is made up of five Members who are appointed by the President to five-year terms, with U.S. Senate consent.  For the last several years, however, the Board has been operating with only three Members:  Board Members Philip A. Miscimarra, whose term expires on December 16, 2017; Mark Gaston Pearce whose term expires on August 27, 2018; and Lauren McFerran, whose term expires on December 16, 2019.

In the spring of 2017, employers received the good news that President Trump had elevated Board Member Miscimarra to NLRB Chairman. Member Miscimarra strongly dissented from several pro-labor NLRB decisions in recent years, including the critical case of Browning Ferris that set forth a new joint employer standard. Unfortunately for employers, Chairman Miscimarra has recently announced that he will not seek consideration for a second term on the Board.

The good news for employers is that President Trump is expected to fill the Board with pro-business appointees, and that his first nominee, Marvin E. Kaplan, has been confirmed by the Senate. Mr. Kaplan was sworn in as a Board Member on August 10, 2017. Mr. Kaplan previously worked at a private law firm, the U.S. Department of Labor, and as counsel to several U.S. House Committees.  Immediately prior to his appointment to the NLRB, he served as Chief Counsel to the Chairman of the Occupational Safety and Health Review Commission. Mr. Kaplan received his J.D. from Washington University in St. Louis, and his B.S. from Cornell University.

President Trump has also nominated to the Board William J. Emanuel. Mr. Emanuel is a management-side labor attorney who has practiced before the Board for many years. He is currently under consideration by the U.S. Senate.

We will keep you posted on Mr. Emanuel's appointment as well as President Trump's appointment to fill Chairman Miscimarra's seat.  Additionally, be on the look out for a new General Counsel to the Board as the term of the present General Counsel, an appointee of President Obama's, expires this fall. This position is also important, as it is the General Counsel who decides which cases will be prosecuted.