- Congressional democrats are running "the famous four corners offense" — a play used to stall in basketball — with President Donald Trump's latest National Labor Relations Board (NLRB) nomination, Phillip Wilson, president and general counsel of the Labor Relations Institute, told attendees at the Society for Human Resource Management's employment law and legislative conference March 12. Lawmakers have delayed a committee vote on John Ring's nomination several times, potentially stalling in an attempt to get Mark Gaston Pearce, a democrat on the Board, renominated before his term expires later this year — making their confirmations a package deal.
- Ring, a management-side labor and employment attorney in the Washington, D.C., office of Morgan, Lewis & Bockius LLP, is slated to replace Philip Miscimarra, whose term expired in December. During Ring's confirmation hearing, lawmakers expressed their desire to prevent a repeat of recent events at the board that led to it throwing out a major joint employment ruling. Ring assured committee members that he would work to avoid a similar situation.
- But even if Ring is approved by the committee soon, it could be some time before his nomination is considered by the full Senate, Wilson said. "I would expect it's at least going to be a couple months before he gets voted on," Wilson added, "[but] hopefully I'm wrong."
As long as the Board remains deadlocked 2-2, employers won't be seeing any substantial action like last year's "December massacre," Wilson said, when NLRB took advantage of a short-lived Republican majority and overturned several high-profile Obama-era rulings.
Since then, however, disorder has reigned. One major ruling from that time dealing with joint employment was vacated, reinstating the Browning-Ferris standard, which employers generally disliked. The Board has now asked the D.C. Circuit Court of Appeals to review that standard, as was originally planned, and the shift may affect at least one high-profile case that was nearing resolution.
But that's only the beginning of the mess Ring would be inheriting, if confirmed. From dissent in the ranks to planned hiring freezes and budget cuts, the next few weeks could be interesting at the agency. Any changes are are likely to be favorable to employers, but they may be a long time coming.