It is becoming apparent that reform of the NLRB is well underway via the leadership of Peter Robb and John Ring. Earlier this week, GC Peter Robb issued guidance issued a new Guidance Memorandum (18-04) detailing how NLRB Regional Offices receiving claims of improper employment policies are to interpret employer workplace rules.
There are three categories of rules
Board chair John Ring has also been active, telling members of Congress the NLRB will be engaging in rulemaking on joint employer issues this year. Ring also announced this week that the NLRB will conduct a “comprehensive review” of its ethics policies concerning the circumstances under which a board member should recuse himself from a case.
NLRB Chairman John Ring previewed the review in a letter sent to three liberal lawmakers on June 5. Today’s announcement said the board will seek outside guidance and examine the recusal practices of other independent agencies. The review will conclude with a report that specifies conditions for recusals.
Earlier this week, the board rejected a motion by Hy-Brand Industrial Contractors to reconsider its joint employer case after the board vacated its decision in February. But board members split along partisan lines over whether an agency ethics official was right to conclude that member William Emanuel had a conflict of interest when he ruled in the case in December.
The two other Republicans on the NLRB called the determination “unprecedented,” claiming it appeared to “go far beyond the stated ethical rules.” Ring appeared to have this objection in mind today, saying the review would “ensure [that] each board member’s right to participate in cases is protected in the future.”
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.