Employment Law, News

Latest Nomination Expected to Boost NLRB’s New Agenda

The announcement of President Donald Trump’s nominee for the vacant seat on the National Labor Relations Board (NLRB) is another sign that some controversial prolabor decisions of the Obama-era Board will be revised.NLRB

John Ring, a management-side attorney with the Washington, D.C., office of prominent law firm Morgan, Lewis & Bockius LLP, was announced as the nominee on January 12. If confirmed by the Senate, he will take the seat vacated by Philip A. Miscimarra, whose term ended December 16.

The Board currently has two Republicans—newly named Board Chair Marvin E. Kaplan and William J. Emanuel—and two Democrats—Mark Gaston Pearce and Lauren McFerran. Assuming Ring is confirmed, Republicans will hold a 3-2 majority capable of rolling back decisions from the Obama-era NLRB.

“He’s a great choice,” Kevin C. McCormick, an attorney with Whiteford, Taylor & Preston, L.L.P., in Baltimore and an editor of Maryland Employment Law Letter, said of Ring and added that he will be “a refreshing voice” on the NLRB. More importantly, however, he will provide the vote necessary to revisit the prolabor decisions of the Obama era.

With the NLRB now having a 2-2 Republican-Democrat tie, it won’t be able to continue reversing previous decisions until the fifth seat is filled. In the last few days of Miscimarra’s tenure, the Board issued decisions rolling back some key decisions, including those involving joint employment, employee handbooks, and the organization of “micro” bargaining units.

McCormick expects Ring won’t have trouble getting confirmed since he’s “a mainstream lawyer at a big D.C. firm,” although he may face union opposition.

Burton J. Fishman, an attorney with Fortney & Scott, LLC, in Washington, D.C., and a contributor to Federal Employment Law Insider, also said Ring is well-qualified and experienced. “He is a reliably pro-management vote on the major issues pending before the Board,” Fishman said. He also took note of how quickly the nomination came.

“What is interesting is the speed with which he (and other Board members) have been nominated and confirmed,” Fishman said. Since taking office, Trump has nominated and the Senate has confirmed two new members—Kaplan, who joined the NLRB on August 10, 2017, and Emanuel, who took his seat on September 26, 2017.

“Recent articles have demonstrated that the large number of government vacancies and the slow pace of filling those vacancies is largely the result of not offering nominees in a timely manner—or at all,” Fishman said. “The fact that the NLRB was fully staffed quickly and the fact that a new nominee was named within a month of Phil Miscimarra’s departure is another indication that those with a strong interest in labor-management issues . . . have the president’s ear.”

Fishman also said that some have wondered why an agency whose main area of activity—unionization—affects just 7% of the private-sector workforce merits such attention, “but antiunion animus and a strong desire to reverse several Obama-era Board decisions are motivating issues among many in the business community, and the president is responding.”

In addition to gaining Republican members, the NLRB also has a new Republican General Counsel, Peter Robb, who took the position November 17, 2017. As General Counsel, he plays a key role in deciding what issues the Board will take up.

McCormick said Robb issued a memo in December to the NLRB regional directors “basically saying there’s a new sheriff in town.” The memo instructs the regional directors to run controversial issues through the Washington office.

“This is just a signal of a new approach to things,” McCormick said.

Tammy Binford writes and edits news alerts and newsletter articles on labor and employment law topics for BLR web and print publications.