Management Memo

On Wednesday, the Senate narrowly confirmed John Ring, a management-side labor attorney from Morgan Lewis & Bockius LLP, to the National Labor Relations Board (“NLRB” or the “Board”).  With this vote, Ring fills the last remaining open seat on the Board, which was previously held by former Chairman Philip Miscimarra.  Ring’s term will expire on December 16, 2022.  The confirmation vote of 50-48 was largely down party lines, with only two Democrats voting in favor of Ring’s confirmation.  The strong opposition from the Democrats is likely due to the perceived efforts of the ...

On February 26, 2018, in a unanimous decision by Chairman Marvin Kaplan and Members Mark Pearce and Lauren McFerren, the National Labor Relations Board (“NLRB” or the “Board”) reversed and vacated its December 2017 decision in Hy-Brand Industrial Contractors, Ltd. (“Hy-Brand”), which had overruled the joint-employer standard set forth in the 2015 Browning-Ferris Industries (“Browning-Ferris”) decision. The decision followed the release of a finding that a potential conflict-of-interest had tainted the Board’s 3-2 vote. What this means, at least for ...

In the months following Donald Trump’s inauguration, those interested in the National Labor Relations Board (“NLRB” or “Board”) waited anxiously for the new President to fill key positions that would allow the Board to reconsider many of the actions of the past eight years. Over the last six months, the Board has begun to revisit, and overrule, several union-friendly and pro-employee Obama-era Board decisions. The Board’s new General Counsel has also given clear guidance as to where else employers can expect to see his office pursue further changes in how the National ...

The White House has announced that John Ring, co-chair of the Labor & Employment Law practice at a management side law firm, is the President’s choice for the vacancy on the National Labor Relations Board created last month when Board Chairman Phillip Miscimarra completed his term on December 16, 2017. Mr. Ring’s nomination to the Board is subject to Senate confirmation. No date has been set for hearings on the nomination.

The Board is Now Split 2-2

Since Mr. Miscimarra’s departure from the Board, where he was part of a 3-2 Republican majority following the confirmation of Marvin ...

In footnotes to two recent unpublished NLRB decisions,  NLRB Chairman Marvin Kaplan, who was named to that role by the President following the December 16, 2017 conclusion of Philip Miscimarra’s term, and Member William Emanuel offered interested observers an indication of two additional areas of Board law that they believe warrant reconsideration once Mr. Miscimarra’s replacement is nominated and confirmed, and the Board returns to a 3-2 Republican majority.

While unpublished Board decisions “are not intended or appropriate for publication and are not binding ...

Last Friday – the day the Star Wars movie Episode VIII hit theaters and the last working day of National Labor Relations Board Chairman Philip A. Miscimarra’s term – the Board continued its efforts to undo some of the most controversial and problematic decisions rendered by the Obama Board before the Republicans temporarily lose their majority.  As we previously reported, recent days have seen a stream of significant decisions and other actions from the National Labor Relations Board.  Most notably, the Board discarded the much criticized indirect control test for determining ...

Peter B. Robb, the newly sworn in General Counsel of the National Labor Relations Board has issued a memorandum, Mandatory Submissions to Advice, GC Memo 18-02 (the “Mandatory Submissions Memo”), that offers clear information as to how he is likely to proceed in setting the agenda and priorities for the Office of the General Counsel which is “responsible for the investigation and prosecution of unfair labor practice cases and for the general supervision of the NLRB field offices in the processing of cases.” As we have previously noted, such Mandatory Submission memos offer a ...

In what may be a harbinger of good things to come, the NLRB recently reversed an Administrative Law Judge’s (“ALJ”) finding that Macy’s, Inc.’s confidentiality policies unlawfully interfered with employees’ Section 7 rights.  Unlike many employer policy decisions issued by the Board in recent years, this case does not break new ground or saddle employers with new, unrealistic onuses.  It merely reinforces well-established rules regarding the use of sensitive customer information obtained from an employer’s records and actually reaffirms the right of ...

Following on the heels first of the U.S. Supreme Court’s January 13, 2017 announcement that it granted certiorari in NLRB v. Murphy Oil USA, along with Epic Systems Corp. v. Lewis (7th Circuit) and Ernst & Young, et al. v. Morris (9th Cir.), and then of President Trump’s January 26, 2017 appointment of Philip A. Miscimarra as Acting Chair of the National Labor Relations Board (“NLRB” or “Board”), there is yet another new development in the ongoing fight over the NLRB’s challenge of class action waivers in arbitration agreements.

Acting swiftly, on January 26, 2017, the ...