On June 27, 2019, NLRB Chairman John Ring spoke at the 36th Carl A. Warns, Jr. and Edwin R. Render Labor and Employment Law Institute in Louisville, Kentucky. Chairman Ring (R), a former management attorney who previously worked for the Teamsters before graduating from law school, was confirmed by the Senate in April 2018. Chairman Ring sought to explain his vision for the NLRB and to give the audience a glimpse of what to expect in the next few years from the agency.
Chairman Ring articulated two objectives for the future of the NLRB. First, Chairman Ring intends to expedite the processing of NLRB cases. As many labor professionals can testify, the NLRB can take years to resolve a case. To help reduce these delays, and with Chairman Ring’s guidance, the NLRB launched an internal pilot program in October 2018. According to Chairman Ring, the pilot program can be summarized as (1) setting deadlines for all stages of NLRB cases and (2) limiting the time NLRB members can spend on dissents and concurrences.
Second, Chairman Ring would like to see the NLRB move towards more rulemaking, rather than relying only on case adjudication, to set precedent. Chairman Ring believes that more administrative rules will promote consistency and predictability in NLRB decisions. The NLRB has already issued a proposed rule for the joint employer standard and solicited input from the public on the 2014 Election Rule, and is currently sifting through thousands of comments that were submitted in response (the NLRB received 29,000 comments on the proposed joint employer rule alone). Chairman Ring stated that the NLRB is expected to issue proposed rules in “mid-summer” regarding the blocking charge and voluntary recognition policies, whether students at universities are employees, and conversion of agreements in the construction industry.
Chairman Ring also reminded audience members that the NLRB is soon expected to have three Republican members (and no Democrats). Since Member Mark Pierce’s (D) term ended in August 2018, the NLRB has had one open seat. The term of Lauren McFerran, the remaining Democrat on the NLRB, is set to expire in December 2019. According to Chairman Ring, the two Democrat seats could remain unfilled for some time. The fact that the NLRB will operate with three Republican members is significant because Republican members have historically been more management friendly.
Chairman Ring finally informed the audience that the NLRB issued several decisions in June that he considers significant. The first, Prime Healthcare Paradise Valley, LLC, 368 N.L.R.B. No. 10 (2019), determined that arbitration agreements are unlawful if employees are unable to file charges with the NLRB. The second, UPMC Presbyterian Hospital, 368 N.L.R.B. No. 2, held that employers do not have to allow union organizers access to their property, so long as they prohibit other nonemployees from similar activity.
Labor professionals will want to stay tuned. Whether Chairman Ring’s vision for the NLRB will be fully realized is yet to be seen. His vision of consistency and clarity in this area of the law would be welcome to most, but using rulemaking to achieve that goal is a substantial departure from the path the NLRB has traditionally followed.