Daily Labor Report®

2019 Outlook: Busy NLRB Looks to Pivot From Controversies

Dec. 19, 2018, 11:25 AM

The NLRB will be working to issue two major workplace rules and resolve a huge case against McDonald’s in 2019, all while its chair and general counsel move carefully to avoid reigniting ethical controversies from 2017.

Big agenda items include issuing “joint employment” regulations, reworking union election rules, and deciding whether to accept a settlement offer from McDonald’s in a significant litigation. The National Labor Relations Board will also have to decide important cases on employee email use for union purposes, and the legality of employers’ workplace rules; continue an internal ethics review; and monitor the nomination of a fifth member.

The ethics review aims to address concerns voiced by Democratic politicians, labor advocates, and even NLRB career staffers, about officials in President Donald Trump’s administration. They say two board members should have to sit out certain decisions because of their ties to big management-side law firms, and that the board and general counsel are making unusual moves to accomplish a sweeping deregulatory agenda that will diminish the agency’s ability to adjudicate labor disputes.

Business coalitions say leadership is simply restoring balance following an aggressively pro-worker Obama-era board. Michael Lotito, an attorney with Littler Mendelson, said he hopes the NLRB will give businesses what they need to plan ahead after years of change.

The board “has a strong responsibility to try to provide the regulated community with certainty,” Lotito said.

Sources familiar with their thinking say Chairman John Ring and top prosecutor Peter Robb will be pressing on with their pro-business agenda—while trying to avoid the sort of criticism brought on by earlier moves.

“You can certainly understand these changes as consistent with a broader trend in the Trump administration to downplay the need to protect workers’ rights, and to enhance the interests of employers,” Sharon Block, a former Democratic board member, told Bloomberg Law.

At the same time, the board will see ramped-up congressional scrutiny in 2019, with Democrats taking the House. Labor committees will likely train their sights on the NLRB, said Celine McNicholas, labor law and policy director at the Economic Policy Institute.

“There’s a lot going on at that agency to be held to account for,” McNicholas told Bloomberg Law.

Looking to Avoid More Controversy

Ring and Robb each exercise significant authority over federal workplace policy. Critics will likely continue to view their actions with an eye on the background ethical controversies that have percolated since the board switched to Republican control in late 2017.

The firestorm started in a case called Hy-Brand. Then Chairman Philip Miscimarra (R) oversaw the ruling, which was later withdrawn because the NLRB inspector general and designated ethics official concluded Member William Emanuel (R) had a conflict of interest. Management attorneys slammed the controversy as political theater to stop policy changes.

Observers and NLRB insiders say the earlier criticism—including from some management allies—may have caused Robb to change his strategy for reforming the agency. He has pivoted to implementing smaller, piecemeal changes to case-processing and has taken to issuing directives via internal memos, as opposed to the usual public process.

The agency inspector general has also undertaken an investigation to identify employees who’ve leaked policy documents to the press. The NLRB declined to answer questions about the leak investigation.

On the board side, Ring will continue a comprehensive ethics review announced shortly after his confirmation, and aimed at establishing recusal protocols to help avoid a repeat of Hy-Brand.

Pondering Pearce

One item on the Senate agenda the board will also be watching is the pending nomination of former Chairman Mark Gaston Pearce.

Pearce is noted for a number of pro-worker decisions. His renomination by Trump was somewhat unexpected and is vigorously opposed by the business lobby.

Bloomberg Law reported in December that Senate Minority Leader Chuck Schumer (D-N.Y.) is discussing a deal with Republicans to confirm Pearce in exchange for speeding up votes on unidentified Trump administration nominees. That deal could be more difficult to land if Democrats also demand that Equal Employment Opportunity Commission member Chai Feldblum (D) be included.

Lawmakers haven’t reached a deal, and Schumer has denied discussing the nomination with the White House directly.

Pending Regs

Two ongoing rulemakings would set the board’s standard for determining whether a company is a joint employer, and modify aspects of union election procedures. The agency doesn’t have extensive rulemaking experience and will have to navigate potentially problematic evidentiary requirements under the Administrative Procedure Act.

Ring, a self-declared “proponent of rulemaking,” has said there are other topics that are appropriate to handle via regulations. Rules take longer than decisions but are harder to undo.

In its more traditional realm of deciding individual cases, the NLRB laid out its framework for analyzing workplace rules in a 2017 ruling involving the Boeing Co. Administrative law judges and regional directors now have the first batch of those cases from the board on remand and many more will likely follow. The board will flesh out its Boeing standard as it reviews those jurists’ decisions.

The NLRB is also primed to decide a highly anticipated case that could potentially overturn an Obama-era ruling that granted workers the right to use work email to organize.

“The biggest issue for the board is to start issuing some of these major decisions, whether through rulemaking or the traditional process,” Littler’s Lotito said.

To contact the reporters on this story: Hassan A. Kanu in Washington at hkanu@bloomberglaw.com; Robert Iafolla in Washington at riafolla@bloomberglaw.com

To contact the editors responsible for this story: Cathleen O'Connor Schoultz at cschoultz@bloomberglaw.com; Chris Opfer at copfer@bloomberglaw.com

To read more articles log in. To learn more about a subscription click here.