President Trump Nominates Fifth Board Member to Round Out NLRB

Earlier this month, President Donald Trump nominated management-side labor attorney, John F. Ring, to the National Labor Relations Board (NLRB). This is a significant nomination because, if Mr. Ring receives Senate approval, the Board will once again be poised to revisit pro-union actions that the NLRB took under the prior administration. This is good news for the business community.

Last month, a fully-constituted five member Board took several actions that began a much anticipated releveling of the playing field between Big Labor and Corporate America in the aftermath of profound pro-union actions. Last month’s actions included decisions restoring traditional standards for deciding what constitutes an “appropriate collective bargaining unit” and when two or more entities are “joint employers.” These changes were welcomed by the business community because they provide a more balanced approach to deciding these issues.

Shortly after the NLRB’s actions last month, the term of then-Chairman Philip A. Miscimarra expired, leaving one seat at the Board open and the NLRB presumably split two-to-two on a host of additional controversial pro-union actions taken by the Board under the prior administration. (Those actions include the propriety of the NLRB’s “quickie” election rule and a decision giving employees a presumptive right to use their employers’ email systems for non-business purposes.) Two of the current Board Members, Mark Gaston Pearce and Lauren McFerran, have endorsed these pro-union actions. The other two Board Members, namely, Marvin E. Kaplan (whom President Trump appointed Chairman after Miscimarra’s term expired) and William J. Emanuel, endorsed last month’s decisions that overruled several pro-union decisions.

A majority rules at the Board, which makes Mr. Ring’s nomination important. It is expected that Mr. Ring’s view of the National Labor Relations Act will align more with those of Miscimarra, Kaplan, and Emanuel than those of Pearce and McFerran. Accordingly, if/when he receives Senate approval, an NLRB majority will once again be in a position to overrule additional pro-union actions that the Board took under the prior administration.

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Employers with questions about the ongoing changes at the National Labor Relations Board should contact an attorney in the Gibbons Employment & Labor Law Department.

James J. La Rocca is a Director in the Gibbons Employment & Labor Law Department.
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