Prior to leaving D.C. for its August break, the Senate confirmed Marvin Kaplan to one of the two vacant management seats on the National Labor Relations Board. Kaplan formerly served as counsel to OSHA. With Kaplan’s confirmation, a 2-2 tie exists at the Board, with two pro-union members and two pro-employer members. This 2-2 tie will create a stalemate at the Board, but likely not for long. After the August break, the Senate will take up the confirmation of William Emanuel, a long time management lawyer in private practice.
Once the Senate confirms Emanuel, the NLRB will have a 3-2 pro-employer majority for the first time in ten years. Notwithstanding the 3-2 majority, a change in direction at the Board may occur slowly as the Board will not be in a position to reverse legal precedent created by the Obama Board until similar specific legal issues work their way to review by the new Board. That process can take years rather than months.
One area in which the Board might have a more immediate impact is undoing the “ambush” election regulations the Obama Board implemented. Those regulations attempt to curtail the ability of an employer to respond to a union’s organizing effort in the hope that tying the hands of employers will improve the win rate for unions.