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Marvin Kaplan Sworn in as NLRB Member

On August 10, Marvin E. Kaplan was sworn in as a member of the National Labor Relations Board (NLRB) for a term ending on August 27, 2020. Kaplan, who was serving as counsel to the commissioner of the Occupational Safety and Health Review Commission, previously served as counsel to the U.S. House Oversight and Government Reform Committee and the U.S. House Education and the Workforce Committee. His appointment brings the NLRB to a four-of-five-member complement, split 2-2 along party lines.

While the Senate Committee on Health, Education, Labor and Pensions (HELP) favorably reported out President Trump’s nominations of Marvin Kaplan and William Emanuel to be members of the NLRB on July 19, the full Senate was only able to confirm Kaplan before the August recess, delaying the confirmation vote for Emanuel until the fall.

The HELP committee held the confirmation hearing for Emanuel and Kaplan on July 13. At the hearing, Democrats voiced concerns with the past work of the nominees, including Kaplan’s history drafting legislation with the House Education and Workforce Committee and Emanuel’s work on behalf of employers as a management-side practitioner, questioning whether they are biased in favor of employers.

Republicans on the other hand expressed frustration at the NLRB’s agenda for the past eight years and highlighted several cases where the Board reversed many years of National Labor Relations Act (NLRA) precedent, including the Columbia University decision — ruling that graduate and undergraduate students who perform work at private institutions as part of their education may be considered in certain cases employees under the NLRA.

If Emanuel is confirmed once Congress returns from recess, the Board would shift to a Republican majority for the first time since December 2007.

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