Lots going on at the NLRB right now. John Ring is still not confirmed although that vote is supposed to happen on Monday. With the withdrawal of Hy-Brand, other parties are going back into court to wrangle over the implications of the restored Obama-era joint employer standard.
The Senate HELP Committee again postponed a confirmation vote on John Ring, President Donald Trump’s nominee for the NLRB.
The vote had been scheduled to take place off the Senate floor this afternoon but was pushed back until 5:45 p.m. Monday, according to the office of Chairman Lamar Alexander (R-Tenn.). Ring, a Morgan Lewis attorney, faced questions from Democrats over potential conflicts of interest.
The company will argue that the labor board wrongly excluded member Bill Emanuel from the decision making process in vacating Hy-Brand¸ which loosened the legal definition of who could be held liable as a joint employer.
POLITICO reported last week that Emanuel was blindsided by the decision, only finding out he had been cut out of the process while at an American Bar Association conference in San Juan, Puerto Rico. The board moved to exclude Emanuel after the NLRB’s inspector general said Emanuel had a conflict of interest due to the involvement of his former law firm, Littler Mendelson, in the 2015 case setting the higher joint employer standard, Browning-Ferris.
But Hy-Brand’s lawyers, Bloomberg Law reports, will say that leaving out Emanuel violates the Government in the Sunshine Act, which requires agencies to have a transparent deliberative process. The motion will also allege that member Mark Gaston Pearce told attorneys in Puerto Rico about the decision one day before it was made public. The company plans to file its motion either today or Monday.
There seems to be a lot of politics in play as the new Trump NLRB struggles to get settled as an agency. The CUE blog will keep you up to date as we learn of further developments. You can also register for the Spring 2018 CUE Labor and Employee Relations Conference where you can hear an update directly from Peter Robb, the General Counsel of the NLRB. – Michael
Report sources via POLITICO Pro