President Trump announced Thursday night that newly confirmed National Labor Relations Board Member John Ring would serve as chairman, replacing current Chairman Marvin Kaplan, who was not serving in any temporary or acting capacity.
The move prompted speculation regarding Kaplan’s apparent demotion, with some seeing it as an effort to calm things at the agency, which has had a troubled few months.
The White House’s terse announcement of Ring’s appointment did not explain why Kaplan was being replaced at the federal government’s main labor law enforcement agency. (Update: Kaplan tells Washington Examiner he voluntarily stepped aside for Ring.)
The consensus among insiders with political groups, trade associations, and congressional staff involved in labor policy and speaking anonymously was that Ring, a former lawyer with the firm Morgan Lewis, was seen as the better leader as he has more management experience and had many years of experience representing clients before the board. Kaplan, by contrast, was a former congressional staffer and Labor Department official.
“Ring was always going to be chair. Everyone knew that,” said one individual with close ties to the White House who requested anonymity.
The NLRB’s five-member board is appointed by the president and confirmed by the Senate but otherwise acts independently. Ring’s confirmation Thursday gives it a 3-2 Republican majority through at least 2020.
Kaplan was appointed to replace departing Chairman Philip Miscimarra in December. At the time, Kaplan was one of two Republicans, both Trump appointees, serving on the board, the other being former business lawyer William Emanuel. It’s not unusual for people to get the chairmanship for brief periods of time, said former Board Member Wilma Liebman, a President George W. Bush appointee who was named chairwoman by President Barack Obama in 2009 and served until 2011.
“The president can name whomever he wishes, who serves in that role at the pleasure of the president. There is no term for chairman. Kaplan remains a board member for the duration of his term,” Liebman told the Washington Examiner. “[Board Member] Peter Hurtgen was named chairman at some point by President George W. Bush after he was elected, but it was understood that he would not remain as chairman.”
Some involved in labor issues pointed to the recent turmoil at the board as evidence that Trump may have been not satisfied with the agency. The board, in a narrow 3-2 vote just before Miscimarra departed in December, decided a major case called Hy-Brand involving the extent of corporate legal liability under the “joint employer” doctrine. Hy-Brand reversed a controversial 2015 board decision called Browning-Ferris that said companies can be held liable for workplace violations by another business when they have “indirect control” over that business’s workforce, a vague standard that alarmed business groups. Hy-Brand overturned that decision, limiting liability to cases of “direct control,” which had been the standard for decades before Browning-Ferris.
Business groups cheered the decision. However, in late February, the board vacated the ruling, following a report by the NLRB’s inspector general that said Emanuel had a conflict of interest in Hy-Brand involving his former law firm, Littler Mendelson. Emanuel has vigorously disputed that, calling the inspector general’s reading of the ethics rules absurd. Kaplan, however, sided with the board’s two Democrats in voting to vacate the decision, a move that lent credibility to the inspector general’s argument that a conflict of interest existed. Democrats have seized on the situation to claim that the board has become plagued with scandals under Trump.
Vacating Hy-Brand also meant that Browning-Ferris was effectively restored as the legal standard — and may remain so for a while, since Emanuel would face pressure to recuse himself should a similar case come before the board.
A White House representative could not be reached for comment. A representative for the NLRB did not respond to questions seeking clarification regarding the change in chairmanships.
