LABOR LAW: NLRB swings Republican with latest Trump nominee

On January 12, 2018, President Donald Trump nominated Morgan, Lewis & Bockius LLP partner John Ring to fill the lone vacancy on the five member National Labor Relations Board (NLRB). After eight years of an employee-friendly NLRB, the latest appointment would flip control of the Board to a Republican majority for the first time in nearly a decade and would all but ensure that the NLRB remains under Republican control until at least 2020.

Nominee is eminently qualified to serve on NLRB

NLRB members are appointed by the president, with the consent of the Senate, to staggered five-year terms. If confirmed, Ring would join Republicans Marvin Kaplan and William Emanuel and Democrats Mark Gaston Pearce and Lauren McFerran on the panel, replacing former NLRB Chair Philip Miscimarra, an Obama-era appointee.

Ring is a former management-side labor and employment partner at Morgan Lewis whose practice focuses on collective bargaining, multiemployer benefit funds, and corporate restructuring. In his more than 30 years at Morgan Lewis, he has also served as counsel to a number of national negotiating teams and carved out a reputation for representing businesses facing union representation issues and unfair labor practice charges before the NLRB.

What we can expect from the new Board

In December 2017, the NLRB issued a number of significant decisions, including overturning the indirect control test for determining joint-employer status and adopting new standards for determining whether facially neutral employer policies and handbooks unlawfully interfere with employees’ rights under Section 7 of the National Labor Relations Act (NLRA). We can expect that with a newly acquired 3-2 Republican majority, the Board will continue to revisit several controversial Obama-era policies.

Once Ring is confirmed, business advocates will look to the Republican majority on the Board to address a laundry list of issues, including joint-employer liability for affiliated businesses, deadlines for union elections, and limitations on employers’ use of contracts to bar class actions by workers. Furthermore, the NLRB will be expected to continue its reexamination of employee February 2018 7

self-organization rights under Section 7 by deciding whether employees have a presumptive right to use their employer’s e-mail system to engage in protected activities and whether employees who have made expletive-laden social media posts against their employer should be protected under the NLRA.

Ring’s nomination is subject to Senate confirmation. At press time, the Senate Health, Education, Labor and Pensions Committee was set to vote on the nomination on February 14, but the Committee has postponed hearings to examine Ring’s nomination to March 1, with a vote on March 7.

Jacob M. Monty, the managing partner of Monty & Ramirez, LLP, practices at the intersection of immigration and labor law. He can be reached at jmonty@montyramirezlaw. com or 281-493-5529. ✤