New NLRB Member Marvin Kaplan Sides with the Union in his First Decision

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By Sara J. Robertson

On August 2, 2017, the Senate confirmed Marvin E. Kaplan, President Trump’s first nominee to serve on the National Labor Relations Board (NLRB). Prior to joining the Board, Kaplan spent the majority of his career in government practice, most recently as the chief counsel of the Occupational Safety and Health Review Commission (OSHRC). Along with the confirmation of William Emanuel on September 27, 2017, President Trump’s second nominee to the NLRB, it was widely expected that the NLRB would now consist of three pro-management members – Kaplan, Emanuel and Chairman Phillip Miscimarra.

In his first decision as a member of the NLRB, however, Kaplan voted with Mark Pierce, and contrary to Miscimarra, when denying an employer’s request to stay an upcoming union election. In PCC Structurals, Inc., Case 19-RC-202188 (Sept. 22, 2017), an unpublished decision, the employer sought to stay an election scheduled for September 22, 2017, or in the alternative, to impound the ballots. The Board denied each of the employer’s requests by a 2-1 vote. Miscimarra dissented on the basis of his disagreement with the Board’s “quickie election” rule, which was implemented in April 2016. When ruling for the Union, Kaplan “expresse[d] no view with respect to whether he agrees or disagrees with the revisions made by the [Quickie] Election Rule…” 

This is just the first decision in which Kaplan has participated and his position on these and other issues will be clarified as additional decisions are released. We will keep you posted on future decisions.