At the conclusion of the Obama presidency there remained two open seats on the National Labor Relations Board (“NLRB”). The five member panel operated with two Democrats and one Republican for a significant period of time given the refusal of the Republican Senate to move on confirmation of President Obama’s nominees. Normally, the Board contains three members of the sitting President’s party. Even with only three members, two Democrats, the Board issued many decisions impacting labor/management relations including sweeping pronouncements regarding employee use of social media and employee handbook policies. The NLRB is charged with enforcing the National Labor Relations Act (“NLRA”), which guarantees the right of most private sector employees to organize and to engage in “concerted activity” which includes discussing the terms and conditions of their employment with one another and the public. Many decisions coming out of the Board over the past eight years are viewed as having increased regulation on private sector employers and limiting the ability of private employers to manage their workforces as they see fit.
President Trump took a step toward filling the board by nominating Republican Marvin Kaplan to one of the seats. Kaplan, a former labor and employment attorney, currently serves as counsel at the Occupational Safety and Health Review Commission. He has significant experience with the issues expected to come before the board. Senate representatives indicate that they plan to take up his nomination quickly. President Trump is also likely to nominate someone to the fifth seat quickly in order to establish a Republican majority on the Board. Employers should expect to see a rollback of some of the Obama era policies in the near future.