Daily Labor Report®

NLRB Faces Ethics Questions on Plan to Trim Grad Student Rights

Oct. 25, 2019, 9:40 PM

The National Labor Relations Board faces fresh ethics questions from a high-ranking Senate Democrat about the agency’s expansive slate of formal regulatory action.

Sen. Patty Murray, the ranking Democrat on the panel that oversees the NLRB, said member Marvin Kaplan likely has a conflict of interest in the board’s proposal to limit union rights for graduate student employees.

The NLRB’s proposal would reverse an Obama-era holding in a case involving the Trustees of Columbia University in New York City. Kaplan likely has a conflict of interest in the rulemaking because his wife is employed by the university’s trustees, Murray said.

During his confirmation, Kaplan told lawmakers that he wouldn’t participate in “any particular matter involving specific parties in which I know the Trustees” are a party, or represent a party, unless he receives a waiver. In her letter, Murray said Kaplan’s participation “appears to be a potential ethics violation” unless he’s “obtained a waiver from ethics officials.”

The grad student plan is just one of many NLRB rule proposals that concern Murray. The Washington senator said she has “serious concerns” about the agency’s “unprecedented” rulemaking efforts. She told NLRB Chairman John Ring in a separate letter that the labor board’s expansive regulatory agenda threatens to damage public confidence in the agency.

Murray’s letters come as the Republican-majority NLRB is pressing forward with its ambitious rulemaking plans, which include developing regulations on joint employer liability, workers’ access to a company’s private property, union certification and decertification elections, and student organizing rights. That may test the agency’s limited rulemaking capacity, observers have said.

Rules for labor-management relations in the private sector generally have been fleshed out through the NLRB interpreting the National Labor Relations Act in individual case rulings. The board decides hundreds of cases each year. By contrast, the NLRB has only completed two regulations in the last 30 years that survived court challenges.

“While the decision to engage in rulemaking lies within the NLRB’s discretion, the circumstances in which the NLRB has chosen to exercise that discretion under your direction as Chairman are troubling,” Murray told Ring in her letter.

The NLRB is preparing a written response to Murray, said agency spokesman Edwin Egee.

“Our rulemakings have been and will continue to be conducted under the highest ethical standards,” Egee said in an emailed statement. “That being said, we will submit our full response to the Senator through a letter, not through the news media.”

In her letter to Kaplan, Murray asked the board member to provide information by Nov. 7 about his wife’s current employment status with the Columbia University trustees, whether he’s received an ethics waiver, and to explain his decision if he hasn’t attempted to get a waiver.

She also requested information from Ring related to rulemakings on student organizing rights, property access, and election procedures. Murray asked for board memos on the decision to engage in rulemaking and communications about that decision between NLRB members and people outside the agency.

The senator also wants to know whether the NLRB plans to hold public hearings and what methods will be used to collect data for its proposal on election procedures.

To contact the reporters on this story: Hassan A. Kanu in Washington at hkanu@bloomberglaw.com

To contact the editor responsible for this story: Terence Hyland at thyland@bloomberglaw.com

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