Labor Board’s Future Discussed

National Labor Relations Board Chairman Speaks at ILR
Marvin Kaplan
Thursday, March 1, 2018

ILR’s Labor and Employment Law Program hosted the new chairman of the National Labor Relations Board, Marvin E. Kaplan, at a panel discussion Thursday, Feb. 22, in New York City. Esta Bigler (ILR ’70), the director of the program, welcomed Kaplan as a fellow Cornellian and explained he is now part of a tradition of board chairmen who have spoken at Labor and Employment Law programs since 2009.

Kaplan (HumEc '03) spoke on the future and credibility of the Trump board. He discussed recent NLRB decisions that repealed several Obama board pro-worker and pro-union decisions, and spoke candidly about his commitment to the NLRB.  "It's been great to get back to my labor roots,'' said Kaplan, a Republican appointed by President Donald Trump.  

Kaplan said the NLRB faces a proposed 9 percent budget cut and its general counsel has suggested 26 regional offices be restructured into four to six district offices.  The proposal has spurred widespread concern from lawyers on all sides of the labor relations bar, as well as federal employees whose jobs and salaries might be on the line.

Kaplan explained that any major reorganizational or procedural changes would have to come before the five-member NLRB.  "We regularly seek comment," Kaplan said.  "I will ensure that this continues."

Kaplan said he is focused on moving cases forward.  "I have made it my priority to get these cases out the door. We have implemented things to get cases out the door faster." Issues pending before the board include employee handbook cases, whether graduate students can be considered employees, the board's jurisdiction over public charter schools and the status of email written on non-work time.

Panelist Susan Davis, who represents labor unions as partner at Cohen Weiss and Simon, said what is happening at the NLRB and recommendations by its general counsel to take decision-making away from the regional directors is "pretty unprecedented."  

"I have a lot of respect for you and what you said,'' Davis told Kaplan.  “We’re going to disagree with a lot of your decisions," but she hopes a data-driven deliberative process will be used to make changes.

Referring to possible regional office restructuring, which Davis called "troubling," said, "What we are going to lose is the relationship we have with our regional directors, which we value highly.  That dynamic would be lost. We all want an agency that is going to be credible and respected."

Panelist Eric P. Simon (ILR '76), a principal in the law firm Jackson Lewis P.C., who represents management, agreed, saying, "We all need an agency that has credibility. The flip-flops of past years have been very hard to deal with." When the board makeup changes, the balance changes, Simon said; "There's a balancing act of competing interests."

During the Obama administration, Simon said, lawyers representing management realized "There's nothing we can do that is right. I hope it doesn't become that way for labor" during the Trump administration, he said.  "We do need consistency at the board."

Kaplan responded that one of his goals is "Ensuring that people have faith in the board in the future. That's the best I can offer."  

"I'd like to say more," Kaplan said, but noted his biggest fault is being too candid, and that gets him in trouble with the NLRB’s designated ethics officer.

During a question-and-answer period, David Prouty, an attorney for the Major League Baseball Players Association, said he's already noticed a drop in morale at the regional offices due to proposed changes.  "You're going to see a run for the exits at NLRB,'' Prouty warned.

Kaplan assured the audience, "We're very early in the restructuring thing.  Restructuring is not a new concept.  The inspector general previously said the board staffing was too top-heavy."

Regarding proposed changes in election rules, Kaplan said, "I don't ever think it's a bad idea to collect the information.  For election rules, we might do nothing.  Same thing for the regions.  I just don't know yet.  Our job is to make sure it's done right."

Finally, Kaplan asked audience members to make sure they weigh in on proposed NLRB rule changes by the March 19 comment period deadline.  "If nothing's provided, then nothing's going to be done.''