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April 05, 2020

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New Board Member Kaplan Sides With Pearce In First NLRB Decision

In what appears to be the first time he has participated in a National Labor Relations Board decision, new NLRB Member Marvin E. Kaplan, a Republican, has voted to deny an employer’s request to stay an election. He voted with Democrat Mark Gaston Pearce and contrary to Republican Philip Miscimarra. Kaplan was sworn in on August 10, 2017, for a term ending August 27, 2020.

In PCC Structurals, Inc., Case 19-RC-202188 (Sept. 22, 2017), an unpublished decision, the employer requested to stay an election scheduled for September 22, 2017, or, alternatively, to impound the ballots. The Board panel, consisting of Chairman Miscimarra and Members Pearce and Kaplan, denied the request by a two-to-one vote, with Miscimarra dissenting. Kaplan sided with Pearce to deny the request.

In his dissent, Miscimarra noted his continuing disagreement with the Board’s quickie election rule, which became effective in April 2016. Kaplan explicitly noted that he was expressing “no view with respect to whether he agrees or disagrees with revisions made by the Election Rule….”

Kaplan has been a member of the NLRB for more than a month, and so we can expect him to participate in more Board decisions soon. Whether Kaplan agrees or disagrees with the decisions and rules issued by the Obama Board remains to be seen.

Jackson Lewis P.C. © 2020


About this Author

Howard Bloom, Jackson Lewis, labor union attorney, unfair practice investigations lawyer, employment legal counsel, bargaining law

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification...

Philip B. Rosen Jackson Lewis  Preventive Practices Lawyer & Collective Bargaining Attorney

Philip B. Rosen is a Principal in the New York City, New York, office of Jackson Lewis P.C. He is a member of the firm's Board of Directors and co-leads the firm's Labor and Preventive Practices Group. He joined the firm in 1979 and served as Managing Partner of the New York City office from 1989 to 2009.

Mr. Rosen lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media, reorganizations and reductions-...