As we previously reported (https://www.employerlaborrelations.com/2017/06/29/management-side-attorney-nominated-for-final-seat-on-nlrb/), President Trump nominated two candidates for vacancies on the five-member National Labor Relations Board – William Emanuel and Marvin Kaplan. The Senate approved Mr. Kaplan to fill one of the vacancies on August 2, 2017 by a 50-48 vote, but has yet to schedule a date to vote on Mr. Emanuel’s appointment.
Just as the Board was about to have its full complement of five members, Chairman Philip Miscimarra, in a letter to President Trump, announced that he will leave the Board when his term expires on December 16, 2017. Accordingly, even if Mr. Emanuel is confirmed by the Senate, the Board will be back down to four members and President Trump will have the opportunity to appointment another Board member (and Chairperson) to replace Mr. Miscimarra. In addition, the term of Richard F. Griffin Jr. as the Board’s general counsel is set to expire in December as well. A Republican appointment to fill his position is likely to follow.
While employers hoped for sweeping changes at the Board with the election of President Trump, especially in connection with some of the Board’s more controversial rulings, such as those dealing with class action waivers in employment agreements, use of an employer’s email systems for union purposes, and unlawful handbook rules, we’ve previously cautioned our readers (https://www.employerlaborrelations.com/2017/05/25/change-to-occur-slowly-at-nlrb/) that such change tends to move more slowly at the Board. With Chairman Miscimarra’s Beatles-esque decision to “say goodbye as [Mr. Kaplan and Emanuel] say hello“ we expect it to take even longer for the Board to restore some balance to decisions reached over the past eight years that many believe have been the most pro-union in the agency’s history. Stay tuned!