Category: NLRB

John Ring NLRB Chair

John Ring Joins the NLRB

On April 11, 2018, the U.S. Senate narrowly confirmed management-side labor attorney John Ring as the fifth member of the National Labor Relations Board. Ring fills the seat vacated in December 2017 by former Board Chairman Philip Miscimarra. The Senate voted 50-48 along party lines. Ring, a Republican, was a partner with Morgan, Lewis & Bockius LLP before his confirmation.

Current NLRB

Following Ring’s confirmation, the White House announced that he would replace Marvin Kaplan as Chair of the NLRB. President Trump had just named Kaplan the Chair in December. Despite the unusual demotion, Kaplan confirmed he would remain on the Board.

In addition to Kaplan, Ring joins members William Emanuel, Mark Pearce, and Lauren McFerran on the Board.

Other than formally making Ring the Chair, no further changes to the Board’s composition are expected until Member Pearce’s term expires on August 27, 2018. Traditionally, no more than three members of the Board have represented the same political party. However, that is not dictated by law. Thus, it will be interesting to see what the White House does regarding Pearce’s seat.

Republican Majority

Republicans now hold 3-2 majority control of the Board. This foretells a continued shift away from pro-labor decisions by the Obama-era NLRB. The Republicans recently held the majority for just a short time before Miscimarra’s term expired. They issued several significant reversals in the last days of his term. (Read more in 2017 NLRB Buzzer Beaters.)

However, the Republican majority still faces a hurdle that may slow the anticipated shift in federal labor law. Member Emanuel’s vote in one of the December 2017 reversals (regarding the joint employer standard) created controversy based on an alleged conflict of interest. Emanuel’s former firm had represented a party in the case that was overruled. The Board subsequently excluded Emanuel and vacated the decision in which he had participated, reverting to the Obama-era precedent.

Emanuel, who had been a partner at national labor law firm Littler Mendelson, may face similar conflicts in many other cases. Ring could also struggle with conflict issues given Morgan Lewis’ substantial client list.

More About John Ring

Before his confirmation, John Ring was a co-leader of Morgan Lewis’ labor/management relations practice.

He received his Bachelor’s Degree from Catholic University and his law degree from Catholic University’s Columbus School of Law. He is a Fellow of the College of Labor and Employment Lawyers.

NLRB General Counsel

General Counsel Reports on the NLRB

On March 14, 2018, NLRB General Counsel Peter Robb issued a memorandum in response to questions and concerns raised at the Midwinter Meeting of the American Bar Association’s Practice and Procedure Under the National Labor Relations Act Committee of the Labor and Employment Law Section. This is an annual tradition for the General Counsel of the National Labor Relations Board.

As the newly confirmed General Counsel, this is Robb’s first time issuing such a report. For those who don’t have the time to read all 27 pages, here are some highlights.

Reorganization of Field Operations

In his first months as General Counsel, Robb has raised many eyebrows and ruffled a fair number of feathers. This has primarily occurred through his designs on reorganizing how the NLRB’s field offices operate.

On this subject, the GC’s memorandum offers:

The General Counsel is currently soliciting input from Agency HQ and Field staff for the purpose of formulating recommended changes to existing case processing procedures. At an appropriate future point, the General Counsel, again in deliberation with Agency staff, will examine and may propose, as appropriate, recommended changes to the structure of the Field offices. No decisions have been made at this time.

The report further indicates that the changes are under consideration for budgetary purposes, adding:

The results of such changes may be to generate benefits in several potential areas, including perhaps: improvement in the efficiency, timeliness, quality of services and organizational decision making, elimination of unnecessary levels of management and administrative support, maximization of employee performance, reduction in travel and other case processing expenses.

The General Counsel also suggests that any changes to the structure of the field offices “will be open for public comment prior to implementation.” He identifies a target effective date of October 1, 2018.

Unfair Labor Practices

In the memorandum the General Counsel reports case-handling statistics for Fiscal Year 2017.

The NLRB received 19,280 charges last year. It settled 95% of them. The agency issued 1,263 formal complaints based on charges. Overall, the NLRB found merit in only 38.6% of the charges filed.

The report includes much more data on topics including:

  • Motions for Summary Judgment
  • Deferrals
  • Subpoenas
  • Section 10(j) Injunctions
  • Submissions to the Division of Advice
  • Charges on Particular Subjects

Representation Cases

Union representation petitions resulted in 1,205 elections in FY 2017. Unions won 71% of these elections. Across these elections 80.5% of the 81,646 eligible employees voted. Overall, 46.7% of the eligible employees voted “yes” and 33.7% voted “no.”

The NLRB also conducted 173 decertification elections. Unions won 32% of these elections, yielding a 68% decertification rate.

The GC’s memorandum also includes a chart of days to election from FY08 to FY17. From 2008 to 2014, there was a median each year of 37 or 38 days from filing of an election petition to the date of the election. In 2015 the number dropped to 33. Over the past two years it has been much lower at 23 days.

The average size of bargaining units has ranged from 24 to 28 between FY07 and FY17. The 2017 average of 24 employees matches that of 2007, 2009, and 2017.

More to Come from the General Counsel and the NLRB

This will not be the last we hear about the NLRB this year. There is still one vacancy on the 5-member Board. Management-side labor attorney John Ring awaits Senate confirmation. When he, or someone else, joins the Board, the new member will join Chairman Marvin Kaplan and Member Bill Emanuel giving the NLRB a Republican majority. They are likely to get back to work changing Obama-era precedents favorable to labor.

One issue still on the table is the fate of the Obama Board’s so-called “quickie” election rules. Late last year a temporary Republican majority issued a request for information suggesting an interest in changing the representation procedures. The Board has now twice extended the time to respond to the RFI. The current deadline is April 18, 2018.

Labor attorneys representing both sides will also be interested to see whether and how the General Counsel proposes to reorganize the NLRB’s field offices. This could significantly affect how the agency operates.

Trump Labor Posts Ring Stoker

Trump Finds Labor Posts for Ring & Stoker

After former National Labor Relations Board Chairman Philip Miscimarra announced he would not serve another term, two names emerged as potential replacements: John Ring and Mike Stoker. On January 12, 2018, President Trump officially indicated his intent to nominate both to federal labor roles.

As expected, John Ring is the pick to fill Miscimarra’s seat on the NLRB. Trump tapped Stoker to be the Director of the Federal Mediation and Conciliation Service (FMCS).

John Ring

Republican attorney John Ring is a partner in Morgan, Lewis & Bockius LLP‘s Washington, D.C. office. He co-leads the firm’s labor/management relations practice and holds other firm administration positions. He received his Bachelor’s Degree from Catholic University and his law degree from Catholic University’s Columbus School of Law.

Ring is a Fellow of the College of Labor and Employment Lawyers and President of the Board of Directors of Friends of the National Zoo.

Impact on the NLRB

If confirmed, Ring will join Chairman Marvin Kaplan and William Emanuel to give the NLRB a 3-2 Republican majority. With a brief period of Republican control under former Chairman Miscimarra at the end of 2017, the Board began reversing key Obama-era precedents. Unfinished business includes potential revisions to the NLRB’s “quickie election” rules implemented in 2014.

Mike Stoker

Mike Stoker is a Republican politician and attorney from California. His former roles include Chairman of the California Agricultural Labor Relations Board (1995-2001) and Deputy Secretary of State (2001-2002). He has also held chairman positions with the Santa Barbara Air Pollution Control District, Santa Barbara Association of Governments, and Santa Barbara County Water Agency and Flood Control board and served on the Agricultural Advisory Board to the California Superintendent of Public Instruction and on the Southern California Hazardous Waste Management Board.

Stoker ran for the California State Assembly in 2010 and the State Senate in 2012.

He received his Bachelor’s Degree from the University of California, Berkeley and his law degree from Loyola Law School in Los Angeles.

About the FMCS

The Federal Mediation and Conciliation Service was created in 1947. It is designed to be an independent agency whose mission is to preserve and promote labor-management peace and cooperation. It pursues this mission primarily through mediation and alternative collective bargaining processes.

Beyond Ring, Stoker

Few companies will ever know or care about the identities of John Ring and Mike Stoker. Yet the agencies the President Trump is entrusting to these men affect many workplaces.

To stay informed about significant labor law developments, sign up for my email newsletter and continue to follow the New York Management Law Blog.