President Donald Trump has re-appointed Marvin Kaplan to the position of Chairman of the National Labor Relations Board (NLRB). The move follows the custom of elevating a member of the president’s party to Chair the Board following an election. Kaplan’s appointment sets in motion the Trump Administration’s labor policy efforts, which will likely pick up steam once the Senate confirms the president’s not-yet-named nominees for the two open board seats.
Kaplan, who has been a NLRB member since August 2017, previously served as the board’s Chairman between December 2017 and April 2018. Prior to his time on the NLRB, he served as chief counsel of the Occupational Safety and Health Review Commission. His current term expires on August 27, 2025.
In recent years Kaplan has notably dissented from several high-profile and union-friendly Board decisions. This sets the stage for the potential reversal of those decisions, for the reasons outlined in Kaplan’s dissents. Some key areas to watch include:
- The Voluntary Recognition Standard (Cemex Construction, 372 N.L.R.B. No. 130), which currently requires employers to promptly file an RM petition if refusing to recognize a designated Section 9(a) representative. The standard also subjects employers to a bargaining order if they commit an unfair labor practice that requires setting aside the election (a “hallmark” ULP). In dissent, Member Kaplan outlined his position that Linden Lumber, allowing employers to refuse to recognize without filing an RM petition, was still precedential.
- Facially Neutral Handbook and Workplace Policies (Stericycle, Inc., 372 N.L.R.B. No. 113), which the Board analyzes through the perspective of an employee who is economically dependent and contemplates engaging in protected activity. Writing his dissent, Member Kaplan expressed support for the prior Boeing standard, which divided workplace rules into three different categories of scrutiny to provide more predictability for employers.
- The Independent Contractor Standard (Atlanta Opera Inc., 372 N.L.R.B. No. 95), which focuses on a non-exhaustive list of factors (g., required skill, method of pay, equipment provided) and the “right to control.” Member Kaplan’s dissenting opinion suggested the prior test focused on “entrepreneurial opportunities” was the better standard.
- Unilateral Changes (Wendt Corp., 372 N.L.R.B. No. 135) (Tecnocap LLC, 372 N.L.R.B. No. 136), which are limited to those consistent with longstanding past practice and not informed by much discretion. The current standard also prohibits unilateral changes made pursuant to past practice under expired management rights clauses. In dissent, Member Kaplan supported the prior standard that permitted discretionary unilateral changes that are consistent with past practice.
- Scope of Protected Activity (Lion Elastomers, 372 N.L.R.B. No. 83), which reverted to three different context-specific standards for whether abusive conduct is protected activity (1) in workplace conversations with management, (2) on social media or in discussions among co-workers, and (3) on the picket line. Member Kaplan expressed his belief that the prior standard, focused on whether the employer would discipline the employee without the protected conduct, was more predictable and workable. Notably, the Lion Elastomers decision was vacated by the Fifth Circuit, but that decision did not clearly state what standard should apply going forward. The Board may seek to clarify what standard prevails during Kaplan’s time as Chair to avoid future confusion.
- Captive-Audience Meetings (com Services LLC, 373 N.L.R.B. No. 136), which were only recently prohibited as a violation of Section 7 rights. The decision carved out a “safe harbor” for employers giving reasonable notice (1) of their intention to express their views, (2) that employees will not be disciplined for not attending, and (3) that the employer will not record attendance. Member Kaplan’s dissent expressed his support for permitting such meetings.
- Broad Non-Disparagement and Confidentiality Clauses in Severance Agreements (McLaren Macomb, 372 N.L.R.B. No. 58), which the Board found can violate Section 8(a)(1). Member Kaplan, in dissent, expressed support for the prior standard, which permitted these clauses when agreeing to them was entirely voluntary.
- Employer Statements During Campaigns (Siren Retail Corp d/b/a Starbucks, 373 N.L.R.B. No. 135), which are now subject to case-by-case review if they concern the impact of unionizing on workplace relations. In his dissent, Member Kaplan supported the prior standard which generally permitted statements about unionizing changing the relationship with management.
- Make-Whole Remedies (Thryv, Inc., 372 N.L.R.B. No. 22), which the Board expanded to include “direct or foreseeable pecuniary harm.” Member Kaplan expressed his view that relief of that kind was beyond the Board’s authority. Like Lion Elastomers, the Fifth Circuit vacated this decision, but the proper standard for such cases may remain an open question.
As mentioned, the NLRB is unlikely to make any major changes immediately. President Trump’s potential appointee for the General Counsel position will also provide key insight into what the next four years might bring from the NLRB and is likely to lead to quick withdrawal of General Counsel Memoranda published during the prior administration. The above dissents from Member Kaplan, however, suggest some of the major decisions we might see from the Board under his leadership. Labor professionals should stay tuned for further indications of what changes the Trump Administration might prioritize early in the upcoming term.
By: Matt Schmitz and Michael Shoenfelt