President Donald J. Trump has narrowed his list of candidates to fill the two open seats on the five-member National Labor Relations Board (NLRB) to Marvin Kaplan, William Emanuel, and Douglas Seaton, according to Bloomberg BNA. Emanuel and Seaton are labor attorneys and Kaplan is counsel to the Commissioner of the Occupational Safety and Health Review Commission. The vacancies come as the board is likely to grapple with a number of significant legal issues, including the extent to which businesses and other entities may be considered joint employers for liability purposes and whether “micro-units” of workers within a larger workplace can unionize.
The five-seat board currently has only three members: Acting Chairman Philip A. Miscimarra (R) and Members Mark Gaston Pearce (D) and Lauren McFerran (D).
The new Board, once appointed and confirmed, likely will revisit recent NLRB rules and decisions, including those covering (1) class action waivers, (2) joint employer, (3) temporary workers, (4) quickie elections, (5) expansion of protected concerted activity (e.g., its impact on workplace policies), (6) definition of appropriate bargaining units, and (7) status of college/university faculty and student athletes.
Emanuel, who didn’t immediately respond to a request for comment, is a shareholder at the management firm Littler Mendelson PC in Los Angeles. He has represented business groups seeking to invalidate state laws that his clients say allow unions to trespass on their property.
Seaton represents employers before the NLRB as an attorney at Seaton, Peters & Revnew in Minneapolis — a firm he founded in 1995. He was previously counsel to the Minnesota House Labor Committee. Seaton confirmed to Bloomberg BNA today that he has applied for a job at the NLRB and that he has had conversations about the board vacancy, although he declined to specify if he’s been interviewed by the White House. “The board has gone very, very far to the left or to the pro-union side of things, and I’d be happy and honored if I could help bring it back to the middle,” Seaton said.