Per a report via POLITICO, Peter Robb is wasting no time in pursuing a review of prior Board cases dealing with mandatory arbitration.
Just yesterday, the NLRB said it is “committed to expeditiously resolving” cases affected by the Supreme Court’s ruling today upholding employment contracts that bar class action lawsuits.
Since 2012, the NLRB has taken the position that it’s illegal for a business to require as a condition of employment that workers waive their legal right to participate in class action lawsuits against the company. Such mandatory arbitration clauses, the NLRB said, violated employees’ right to “concerted action” under the 1935 National Labor Relations Act.
Today, however, the NLRB said it “respects the court’s decision” allowing mandatory arbitration. “With today’s decision by the Supreme Court, employers are permitted to maintain and enforce such class-action waiver agreements,” the NLRB said in a statement.
Justice Neil Gorsuch wrote the 5-4 ruling on a trio of cases, one of which — NLRB v. Murphy Oil USA, Inc. — involved the agency.
There are currently 55 pending cases before the NLRB in which employees allege employers violated federal labor law by enforcing mandatory arbitration agreements concerning class action or other types of collective legal action.
The NLRB’s Office of General Counsel filed a motion today asking the D.C. Circuit Court to send back for review a mandatory arbitration case in light of a Supreme Court decision yesterday that affirmed employers may bar workers from participating in class action lawsuits against them.
In 2015, the NLRB said Toyota Sunnyvale violated labor law by enforcing a mandatory arbitration agreement that barred its employees from “concertedly pursuing work-related claims” in court. From 2012 until yesterday, the NLRB took the position that mandatory arbitration agreements barring class-action suits violated the 1935 National Labor Relations Act.
Toyota Sunnyvale appealed the 2015 ruling in federal court, and yesterday’s Supreme Court decision invalidated it. “The board acknowledges that under that decision, the decision and order in this [NLRB] case is no longer enforceable,” wrote Linda Dreeben, deputy associate general counsel.
After yesterday’s ruling, the NLRB said it is “committed to expeditiously resolving” cases affected by it. Some 55 cases are currently pending before the board in which employees allege that mandatory arbitration agreements barring class-action suits violated labor law.
POLITICO’s Andrew Hanna sat down with former NLRB chairman Philip Miscimarra to talk about everything from the now-you-see-it-now-you-don’t Hy-Brand joint employment decision to infighting on the current board. Some highlights:
On whether William Emanuel should have recused himself from Hy-Brand (read about the controversy here): “I believe under the ethics rules that were applicable during the time Hy-Brand was decided there was no obligation for member Emanuel to recuse himself … the inspector general report addressing this issue confirmed that at least when the board commenced its consideration of Hy-Brand, member Emanuel didn’t have any requirement of recusing himself.”
On what’s next for the NLRB: ” The board during President Obama’s term implemented very significant changes in a number of very fundamental areas. I would expect in future cases, the board will continue to address situations that involve many of the same issues.”
On infighting among board members: “During my tenure, the board — most of the time — was collegial…. But at the same time, in the relatively narrow band of cases where board members may disagree, there are strongly held views…. I do think that some of the reports about controversies or paralysis at the current board are somewhat overstated.”
Update 4/11/2018: As expected, John Ring was confirmed to join the NLRB today.
The Senate today confirmed John Ring to the National Labor Relations Board, restoring Republican control after a nearly four-month stalemate.
The Senate voted 50-48 to confirm Ring, a Morgan Lewis attorney who has represented businesses in disputes with labor unions. His arrival gives Republicans a three-person majority on the five-member board, allowing the GOP to resume rolling back Obama-era decisions in favor of unions.
At the top of the list will be reversing the Obama-era joint employer standard, which determines who’s responsible for labor violations committed by franchisees and contractors. Republicans reversed the Obama-era Browning-Ferris Industries decision in December, only to vacate the new ruling weeks later after the NLRB inspector general concluded that Trump appointee William Emanuel had a conflict with his former law firm.
POLITICO is reporting that John Ring’s confirmation vote to the NLRB will be Wednesday, according to a spokesperson for Sen. Patty Murray (D-Wash.), ranking member of the Senate HELP committee.
Sen. Mitch McConnell (R-Ky.) scheduled a cloture vote on Ring’s nomination for 2:15 p.m. today, followed by 30 hours of debate if needed. Ring, an attorney with the management-side law firm Morgan Lewis, has attracted scrutiny from Democrats for his work representing large corporations.
The Trump administration’s previously confirmed NLRB choice, Bill Emanuel, was recently faulted by the agency’s inspector general over his failure to recuse himself in a case in which, the inspector general said, Emanuel had a conflict of interest owing to his previous employment by Littler Mendelson, another management-side law firm. Ring provided a list of clients to senators after his confirmation hearing last month.
Sen. Elizabeth Warren (D-Mass.) urged lawmakers to reject Ring’s nomination from the Senate floor today, citing the potential for a conflict of interest. “Mr. Ring’s long list of clients is a huge red flag: either he’ll ignore the ethics rules when they’re inconvenient, like Mr. Emanuel did, or he’ll likely have to recuse himself from important cases.”
The National Right To Work Committee — not typically a Warren ally — has expressed similar objections to Ring, though for a different reason. The committee said it worried that, between Emanuel and Ring, the Republican majority would recuse itself out of opportunities to reverse Obama-era precedents.