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Trump Selects Republican Lawyer for NLRB Seat to Roll Back Policy Changes

President Donald J. Trump thoughtfully nominated Washington attorney Marvin Kaplan to sit on the National Labor Relations Board, no doubt hoping to nudge the agency toward a Republican majority that could overturn a number of decisions that have irritated the business world.

If confirmed by the Senate, Marvin Kaplan of Kansas will serve on the NLRB for the remainder of a five-year term expiring August 27, 2020.

This latest nomination comes on the heels of Trump's selection of Philip A. Miscimarra (pictured below) last January to head the NLRB, the government's main labor law enforcement agency. At that time, Miscimarra, who has been a frequent critic of the actions of its Democratic majority, was the only Republican on the board. When the announcement was then made, Miscimarra vowed, "I remain committed to the task that Congress has assigned the board, which is to foster stability and to apply the National Labor Relations Act in an evenhanded manner that serves the interests of employees, employers and unions throughout the country."

The Washington Examiner reported that Miscimarra replaced Mark Gaston Pierce, whose position will expire on August 17, 2018. It said the only other board member is Lauren McFerran, whose term ends in 2019. That left the five-member board with two vacant seats.

The Examiner report also stated, "Once a fairly obscure federal agency, the board became highly activist during Obama's administration, seeking to expand and reinterpret existing federal rules to expand its reach. Miscimarra has been a frequent critic of those efforts."

The biggest change came in 2014 when the board charged McDonald's Corporation as a "joint employer" in a series of unfair labor practice complaints against franchise restaurant chains, even though the franchisees were mostly privately owned, and therefore legally separate businesses, the Washington Examiner explained. "The labor board has charged several other businesses under this expanded joint employer definition since then. Miscimarra has repeatedly slammed this approach in dissenting opinions," the report stated.

The Examiner report continued saying that when the NLRB ruled last year that McDonald's could not subpoena evidence to buttress its claim that it was merely protecting its company brand against a coordinated public relations campaign by organized labor, Miscimarra compared it to a murder suspect being barred from arguing that he acted in self-defense.

Miscimarra explained in a dissent about six times as long as the majority opinion, "It is not appropriate at this juncture to determine whether the 'brand protection' defense has merit. McDonald's has a right to pursue this defense to the extent it has a good-faith relation to matters raised in the complaint."

Reuters reported last week regarding Trump's latest NLRB selection that Marvin Kaplan is currently with the federal Occupational Safety and Health Review Commission, and must be confirmed by the U.S. Senate. It says the NLRB "has been controlled by Democrats for nearly a decade, and they currently have a 2-1 majority with two vacancies."

The report adds, "The Board, when fully stocked, includes three members from the president's party and two from the opposing party. Under Trump, lawyers and business groups expect the board to roll back a series of policy changes adopted during the administration of former President Barack Obama."

Responding to Trump's nomination last Monday, the International Franchise Association and the National Restaurant Association praised Kaplan's appointment, saying he and a second nominee who Trump is expected to name anytime would bring more balance to the board.

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About Janet Sparks

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Janet Sparks is the former publisher of the Continental Franchise Review, an industry newsletter that covered the franchise community for over 30 years. She has also been a columnist for a leading franchise magazine for the past 13 years. Today she is an independent journalist who engages in investigative reporting, tackling complex issues that impact the franchise industry.

Janet can be reached at or at 303-799-7398.