President Trump Proposes Two NLRB Nominees, Potentially Creating Republican NLRB Majority, and an EEOC Nominee

June 30, 2017
In the past two weeks, President Donald J. Trump proposed two nominees to fill vacancies on the five-member National Labor Relations Board (“NLRB”) and a nominee to fill the lone vacancy on the Equal Employment Opportunity Commission (“EEOC”). If both NLRB nominees are confirmed by the Senate, the NLRB will have a Republican majority, which may reconsider and reverse a number of precedents set by the Democratic-led NLRB under President Barack Obama.

On April 24, 2017, President Trump appointed NLRB Member Philip Miscimarra, a Republican, to be Chairman of the NLRB. At the time, the five-member NLRB had two vacancies and three members—Chairman Miscimarra and Democrats Mark Gaston Pearce and Lauren McFerran. On June 20, 2017, President Trump announced the nomination of Marvin Kaplan to fill one of the two vacancies. Mr. Kaplan currently serves as counsel at the Occupational Safety and Health Review Commission, and previously served as the Republican workforce policy counsel for the House Education and the Workforce Committee. On June 27, President Trump nominated William Emanuel, a labor and employment lawyer at Littler Mendelson PC in Los Angeles, to the other vacancy. Mr. Emanuel has written several amicus curiae briefs on behalf of trade associations in cases challenging state laws that allow labor unions to trespass on the private property of employers. If the Senate confirms both nominees, the NLRB will have a three-member, Republican majority.

A Republican-majority NLRB may reconsider and reverse a number of the Democratic-led NLRB’s prior rulings, such as those from which now-Chairman Miscimarra dissented. For example, in Browning-Ferris Industries of California, Inc., 362 N.L.R.B. No. 186 (Aug. 27, 2015), the NLRB overturned 30 years of precedent and ruled that “two or more entities may be joint employers of a single work force if they are both employers within the meaning of the common law, and if they share or codetermine those matters governing the essential terms and conditions of employment.” Id. at *19. Then-Member Miscimarra dissented, arguing that the new rule fundamentally altered the franchisor-franchisee relationship, violated both NLRB precedent and trademark law, and cast “innumerable parties, including employees, employers [and] unions” into “legal limbo.” Id. at *25. A Republican-led NLRB may also revisit rulings allowing unions to form micro-bargaining units by job classification, Specialty Healthcare and Rehabilitation Center of Mobile, 357 N.L.R.B. No. 83 (Aug. 26, 2011), and granting graduate students the ability to unionize, Trustees of Columbia Univ. in the City of New York and Graduate Workers of Columbia-GWC, UAW, 364 N.L.R.B. No. 90 (Aug. 23, 2016), and guidance permitting faster union elections, Guidance Memo on Representation Case Procedures Changes, N.L.R.B. GC Memorandum 15–06.

On June 29, President Trump announced the nomination of Janet Dhillon, the general counsel of Burlington Stores Inc. and former general counsel of US Airways and J.C. Penney, to the EEOC. Democrats currently hold a 3–1 majority on the five-member EEOC, so Ms. Dhillon’s confirmation to the current vacancy would not immediately affect the Commission’s partisan balance. The term of one of the Democrat members, Jenny Yang, will expire later this year. The position of EEOC general counsel remains vacant.