Senate Confirms One of Two Republican NLRB Nominees As Federal Courts Continue to Slam Obama Board

Employment Law

The Senate voted along strict party lines to confirm Marvin Kaplan to the NLRB before leaving for the August recess this week and a third federal court in recent weeks reversed a Board decision, finding "the Board's actions in this matter are more consistent with the role of an advocate that an adjudicator."  With Kaplan's confirmation, the Board is now composed of two Republicans and two Democrats.  Remaining nominee William Emanuel, whom the Senate will consider after the August recess, is expected to give Republicans the majority, allowing the Board to begin rolling back certain controversial decisions made by the Obama-era Board.  In the meantime, the federal courts are validating critics of the Obama-era decisions, striking down a third Board decision in four weeks.  The D.C. Circuit Court of Appeals unanimously overturned a Board ruling that Fred Meyer Stores violated federal labor law in a clash with union organizers.  As part of the ruling, the court found that the arrests of union employees were a result of failure to obey police orders, and not a violation of labor on Fred Meyer's part.  The panel wrote, "The Board's opinion is more disingenuous than dispositive; it evidences a complete failure to reasonably reflect upon the information contained in the record and grapple with contrary evidence—disregarding entirely the need for reasoned decision making."