University Motion Opposes Call for Recusal of NLRB Member from Unionization Case

The motion requests permission to intervene in the UChicago case so that GWC can ask NLRB member Marvin E. Kaplan to recuse himself from the UChicago case.


By Deepti Sailappan, Managing Editor ('19-'20)

The University filed a motion Monday with the National Labor Relations Board (NLRB) opposing a motion filed by the Graduate Workers of Columbia (GWC) to intervene in the pending graduate student unionization case at the University of Chicago.

The GWC motion, filed on Thursday, requests permission to intervene in the University of Chicago case so that GWC can ask NLRB member Marvin E. Kaplan to recuse himself from the UChicago case. The motion argues that Kaplan should be recused because his wife is employed by the Trustees of Columbia University, and the University of Chicago case could have implications for the graduate student unionization case at Columbia University.

Kaplan was sworn into the NLRB in August. He submitted a letter in July pledging to recuse himself from any cases involving the Trustees of Columbia University if confirmed to the NLRB by the Senate.

A pending request for review by the administration in the University of Chicago case argues that the NLRB’s verdict last year in the Columbia case, which classified graduate students as employees with respect to federal labor law, was wrong and should be overturned. That verdict allowed graduate students at Columbia to form a union under GWC.

The University’s opposition to the GWC motion claims that the intervention is a last-minute attempt to prevent a full hearing by the NLRB for all decisions related to the University of Chicago case. It argues that if the NLRB does grant its request for review, the decision could be grounded in factors that do not implicate graduate students at Columbia, making Kaplan’s recusal from cases involving Columbia University irrelevant.

The University’s argument also contests the idea that Kaplan must recuse himself from the graduate unionization case at Columbia. “Simply because Member Kaplan recused himself from matters involving Columbia University does not establish the existence, in fact, of ‘direct and predictable’ effect of graduate students’ unionization efforts on the finances of Member Kaplan or his wife,” the University’s opposition states.

Also at issue is the fact that Kaplan is one of two current NLRB members (out of a total five) appointed by President Donald Trump; Philip Miscimarra, a Republican appointed by former President Barack Obama, was recently promoted by Trump to NLRB Chairman. The GWC motion references the University’s recent petition to stay the graduate unionization election, which argued that “the current Board has a different majority than when Columbia was decided, and Chicago submits that it is probable that the newly constituted Board will reverse Columbia…”

“The University of Chicago’s counsel apparently believes that…the two newly appointed Board members are ready to overrule [the Columbia University] decision,” the GWC motion states. “Participation by Member Kaplan in either of these cases [involving the University of Chicago and Boston College] would reinforce the perception that the outcome of this litigation is preordained and that the petitioning unions will not receive a fair, neutral and unbiased decision.”

The NLRB has yet to respond the University’s request for review, the University’s motion to stay the election taking place today and tomorrow, or the GWC motion to have Kaplan recused.