On Wednesday, the U.S. Senate confirmed Marvin Kaplan, a former Occupational Safety and Health Review Commission lawyer, to fill one of the two open seats on the National Labor Relations Board, moving the agency a step closer to a Republican majority. Kaplan was confirmed on a 50-48 party-line vote by the GOP-controlled Senate.

The Senate has yet to schedule a vote for President Trump’s second nominee for the Board, William Emanuel, a long time management-side labor and employment lawyer. The Senate is expected to vote for cloture on Emanuel’s nomination after the August recess. The cloture vote kicks off a 30-hour period of debate. A final confirmation vote will then be scheduled.

The delay in moving forward on Emanuel’s nomination is the result of several Democrats stalling by raising partisan concerns that Emanuel’s history as a management-side lawyer somehow creates a conflict of interest, notwithstanding their prior support of Board nominees who have had lifelong careers as attorneys for unions, and indeed in numerous other instances, attorneys who represented employers. For example, current Member Mark Gaston Peace was longtime union lawyer and the current NLRB General Counsel Richard Griffin, Jr. was the General Counsel of the International Union of the Operating Engineers and a member of the board of directors of the AFL-CIO Lawyers Coordinating Committee.

Emanuel is expected to be confirmed in September despite the delays.

As discussed in our earlier advisory, if the nomination of Emanuel is confirmed by the Senate, which seems likely as of now, the NLRB will not only have its first Republican majority in nine years, it will return to full strength at five members. As cases come before the Board for its consideration, the NLRB will likely reconsider many of the decisions of the Democratic majority Obama Board. However, as we have noted, NLRB General Counsel is expected to serve out his four year term and remain in that critical post, in which he decides in many respects, which issues are litigated and presented to the Board, through November 3, 2017.

As we noted in our earlier blog, the Board is likely to consider a number of significant legal issues once the final vacancy is filled, including the NLRB’s standards for determining whether joint employer relationships exist, the standards for evaluating whether handbooks and work rules unlawfully interfere with employees’ rights under the National Labor Relations Act (“NLRA”), the Board’s standards for determining what are appropriate units for collective bargaining including a review of the so-called “mircro-units” approved by the Obama Board, the status graduate students and research assistants as employees under the NLRA with the right to collective bargaining, and a host of other decisions from the past eight years that more expansively interpreted the NLRA.

On Tuesday night, the President announced the nomination of William Emanuel, a long time management-side labor employment lawyer, to fill the last remaining vacancy on the five-member National Labor Relations Board.

As we noted in our earlier blog, last week the President announced the nomination of Marvin Kaplan, who currently serves as counsel at the Occupational Safety and Health Commission, to fill the other vacancy on the NLRB.

If the nominations of Messrs. Emanuel and Kaplan are confirmed by the Senate, which seems likely as of now, the NLRB will not only have its first Republican majority in nine years, it will return to a full strength at five members. As cases come before the Board for its consideration, the NLRB will likely reconsider many of the decisions of the Democratic majority Obama Board.  However, as we have noted, Richard F. Griffin, Jr., who was appointed as the Board’s General Counsel, is expected to serve out his four year term and remain in that critical post, in which he decides in many respects, which issues are litigated and presented to the Board, through November 3, 2017.

The nominations of Messrs. Emanuel and Kaplan will now go before the Senate Committee on Health, Education, Labor & Pensions, where they are expected to be advanced.

As discussed in our earlier advisory, the Board is likely to consider a number of significant legal issues once the vacancies are filled, including the NLRB’s test for determining whether joint employer relationships exist, the standards for evaluating whether handbooks and work rules interfere with employees’ rights under the National Labor Relations Act (“NLRA”), appropriate units for collective bargaining, the question of whether graduate students and research assistants are employees under the NLRA with the right to collective bargaining, and a host of other decisions from the past eight years that more expansively interpreted the NLRA.

The President earlier this week announced the nomination of Marvin Kaplan, who currently serves as counsel at the Occupational Safety and Health Commission, to serve as a Member of the National Labor Relations Board. Mr. Kaplan is a Republican and once confirmed, his taking a seat on the Board will be an important step in the move towards a more employer-friendly Republican majority that can be expected to reconsider many of the decisions of the Democratic majority Obama Board. Mr. Kaplan’s nomination is for the seat most recently held by Member Harry Johnson, and will be for a full five year term continuing into 2022.

The nomination is now before the Senate Committee on Health, Education, Labor & Pensions, where it is expected to be advanced. Committee Chairman Lamar Alexander of Tennessee expressed his support, stating “Marvin Kaplan has the qualifications to be an effective member of the National Labor Relations Board. Once Mr. Kaplan’s nomination paperwork is received, the Senate labor committee will move promptly to consider his nomination.” It is not yet known however when that will occur.

As we reported last month, the President is also expected to nominate management side labor lawyer William Emanuel for the other vacant seat on the Board.

If President Trump’s nominees are confirmed by the Senate, the NLRB will have its first Republican majority in nine years.

As discussed in our earlier advisory, the board is likely to consider a number of significant legal issues once the vacancies are filled, including the NLRB’s test for determining whether joint employer relationships exist, the standards for evaluating whether handbooks and work rules interfere with employees’ rights under the National Labor Relations Act (“NLRA”), appropriate units for collective bargaining, the question of whether graduate students and research assistants are employees under the NLRA with the right to collective bargaining and a host of other decisions from the past eight years that more expansively interpreted the NLRA.

According to news reports, the Trump administration has submitted Marvin Kaplan and William Emanuel for FBI background checks, and it plans to nominate them by June to fill a pair of vacancies at the National Labor Relations Board (“NLRB”).

The administration hopes to have the new members confirmed by the Senate before the August recess.

Kaplan is currently counsel to the commissioner of the independent Occupational Safety and Health Review Commission. He previously served as the Republican workforce policy counsel for the House Education and the Workforce Committee.

Emanuel 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.

The five-seat board currently only has three members: Chairman Philip A. Miscimarra (R) and Members Mark Gaston Pearce (D) and Lauren McFerran (D). The vacant seats are reserved for Republicans. The Board is generally composed of three Members of the President’s party and two from the other party.

If President Trump’s nominees are confirmed by the Senate, the NLRB will have its first Republican majority in nine years.

As discussed in our earlier advisory, the board is likely to consider a number of significant legal issues once the vacancies are filled, including the NLRB’s test for determining whether joint employer relationships exist, the standards for evaluating whether handbooks and work rules interfere with employees’ rights under the National Labor Relations Act “(NLRA”), appropriate units for collective bargaining, the question of whether graduate students and research assistants are employees under the NLRA with the right to collective bargaining and a host of other decisions from the past eight years that more expansively interpreted the NLRA.

While this will ultimately be a welcome change to employers, for those with cases pending the current union leaning majority may still have several months to issue Obama-era type decisions.