Long-time public sector attorney Marvin Kaplan was tapped Monday by President Donald Trump for a vacancy on the National Labor Relations Board, moving the agency tasked with ruling on major disputes between businesses and unions one step closer to a Republican majority for the first time in nearly a decade.
If confirmed by the U.S. Senate, Kaplan, a lawyer within the Occupational Safety and Health Administration, would join Republican chairman Philip Miscimarra and Democratic members Mark Gaston Pearce and Lauren McFerran. A nominee for one other vacancy has yet to be announced for the five-member board, which is generally composed of three members of the president’s party and two from the opposing side.
The Trump administration has been criticized by business groups and employer-side attorneys for its lethargic appointment process for vacancies to the NLRB and other agencies, stalling the president’s promises to roll back the Obama administration’s regulations. The board is set to consider or reconsider several high-profile issues, including the examination of “joint employer” relationships, collective bargaining issues over “micro” units and whether graduate students should be considered employees with the right to unionize.
Kaplan is currently counsel to the commissioner for the Occupational Safety and Health Review Commission. He previously served as the Republican workforce policy counsel for the Houston Education and Workforce Committee, according to his LinkedIn.
In that role, he wrote that he drafted labor and employment legislation, including the Tribal Labor Sovereignty Act of 2015 and the Workforce Democracy and Fairness Act, and “conducted oversight of and investigated allegations of waste, fraud, and abuse by the Department of Labor and National Labor Relations Board.”
He also noted that he led efforts to fight U.S. Labor Department overtime rules and 2012 NLRB recess appointments. Kaplan, since 2015, has worked for the Occupational Safety and Health Review Commission, which reviews decisions by administrative law judges for health and safety disputes between the Labor Department and employers.
Kaplan will bring “balance” to the board and its interpretation of the National Labor Relations Act, said Angelo Amador, senior vice president and regulatory counsel for the National Restaurant Association. He said Kaplan may not be from the business side, but he is dedicated and will have a perspective on issues from both the government and business side. “He’s one of the guys paying attention to hours and hours of testimony,” Amador said. “He is very aligned with bringing a balanced view to the NLRB.”
Amador said the board has at times rewritten certain standards of law, which is a concern to the business community. He said he believed Kaplan will be conservative in his approach to the application of law.
“He is someone who is fair and willing to listen to both sides,” Amador said. “He is very intelligent and heavy on the intellectual side that he is applying law correctly. I don’t think by any stretch he is partisan. He’s someone who wants to look at the facts.”
Industry and anti-union groups lauded the apparent progress in moving the board toward a Republican majority after Kaplan’s nomination was announced.
The Coalition for a Democratic Workplace, an alliance of industry groups that opposed legislation that made it easier for workers to unionize, released a statement lauding the choice. Coalition chair Kristen Swearingen said Kaplan will restore balance to “recent and radical decisions” by the agency. She said the previous board injected uncertainty into the labor relations.
“We are confident Mr. Kaplan will interpret the National Labor Relations Act in a manner that is fair to workers, unions and employers,” Swearingen said. “The nomination is another signal that this administration will make reforms that will restore jobs to the American people.”
The National Right to Work Committee and the National Right to Work Legal Defense Foundation said Kaplan would help push the board to adopt more pro-business stances.
“President Trump should nominate an additional nominee as soon as possible and the Senate to quickly confirm both nominees so they can begin to roll-back the immense damage done to American workers’ freedoms over the past eight years,” said Mark Mix, president of the National Right to Work Committee and the National Right to Work Legal Defense Foundation, in a statement Tuesday.
While the board has been politicized as “big gifts to big labor” in the last nine years, many cases are run of the mill and not resolved in favor of the dominant party, said Celine McNicholas, the Economic Policy Institute’s Labor Counsel and member of EPI’s Perkins Project on Worker Rights and Wages, a policy response team that tracks the Trump administration’s wage and employment policies. McNicholas said the board was used as a tool under the Obama administration but in reality there have not been major shifts.
“There hasn’t been in my view, sort of great strides or shifts in the law that would constitute that enormous blow back,” she said. “These aren’t tectonic shifts in the law. The rhetoric has been overblown to the recent actions of the board and the external political dialogue has changed.”