August 2, 2017; The Hill
President Trump’s pick to fill one of several vacancies on the National Labor Relations Board has raised concerns among advocates, both because of his past record and because his appointment may tip the balance of the board toward a more conservative stance.
Marvin Kaplan has served with the Occupational Safety and Health Review Commission, the Republican workforce policy counsel for the Houston Education and Workforce Committee, and counsel to the U.S. House Oversight and Governance and Reform Committee, according to his LinkedIn. The profile notes that he “conducted oversight of and investigated allegations of waste, fraud, and abuse by the Department of Labor and National Labor Relations Board [and] led efforts to fight DOL overtime rules and 2012 unconstitutional NLRB recess appointments.”
According to the Wall Street Journal,
Some business groups have expressed frustration about lingering vacancies on the board, one of several Washington, D.C., bodies without a full complement of appointed officials, because it has slowed efforts to roll back decisions made during Mr. Obama’s tenure…Board decisions during Mr. Obama’s tenure resulted in some big advances for labor unions, including an easier path for contractors and employees at franchise businesses to join unions.
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Coalition for a Democratic Workplace chair Kristen Swearingen told the National Law Journal, “We are confident Mr. Kaplan will interpret the National Labor Relations Act in a manner that is fair to workers, unions and employers. The nomination is another signal that this administration will make reforms that will restore jobs to the American people.” However, Swearingen also told The Hill, “If we could get a Republican majority then we can start to overturn eight years of horrible regulations, which is going to take time obviously, but at least we won’t have the board stacked against us.”
The Hill noted in another article that “On the Senate floor Wednesday, Sen. Elizabeth Warren (D-Mass.) criticized Kaplan for the time he spent as a House staffer, where he worked on measures to strip workers of their right to organize and join unions in their workplace.”
The National Labor Relations Board was established by President Franklin Roosevelt in 1935. Members serve five-year terms, so they overlap presidential administrations. Its job is to enforce labor laws, protect collective bargaining, and fight unfair practices. The appointment of Kaplan, plus William Emanuel, a labor lawyer at Littler Mendelson in Los Angeles, could tip the balance of the board toward more conservative viewpoints on labor relations. Kaplan was confirmed on party lines, but Emanuel has not yet come up for a vote.
Some of the labor regulations that Republicans seek to overturn include making franchisors potentially liable for labor law violations committed by their franchisees and facilitating quicker or easier union elections. Obama’s appointees also protected employees who were fired because of social media commentary, forbid mandatory arbitration clauses, and more. Many of these rulings will be up for reversal if the board’s balance changes, putting workers’ rights in jeopardy.
Trump’s original nominee for Labor Secretary, fast food CEO Andy Puzder, was forced to withdraw after concerns arose about his eligibility, in part because of his anti-labor views and in part because of questions about his taxes and the immigration status of his housekeeper. Alexander Acosta, a former National Labor Relations Board member, was appointed instead.
If the board changes balance, then labor nonprofits will need to keep an eye out for workers’ rights and protections. Kaplan’s previous record of service is cause for concern.—Erin Rubin