Big Law Rules Employer Defense Business in Labor Board Cases

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By Lawrence E. Dubé

Dec. 7 — Nine national law firms dominated the representation of employers before the National Labor Relations Board in 2016, the agency’s records show. The firms represented employers in about one-third of the cases reported in the board’s published decisions for the fiscal year.

Littler Mendelson P.C. topped the list, taking part in 28 of 298 unfair labor practice or representation cases, or nearly 10 percent of cases before the board in fiscal 2016.

Littler’s representation of management interests in labor law matters has been a cornerstone of the firm’s traditional practice group for nearly 75 years, firm representatives told Bloomberg BNA.

Jackson Lewis P.C. was a close second, handling 22 cases this year that resulted in published board decisions. Ogletree, Deakins, Nash, Smoak and Stewart, P.C. represented employers in 13 cases. Fisher Phillips LLP and Morgan, Lewis & Bockius LLP rounded out the top five law firms, representing management in 10 and eight cases, respectively.

Other national firms that handled numerous cases before the board in FY 16 included Constangy, Brooks, Smith & Prophete LLP; FordHarrison LLP; Proskauer Rose LLP; and Seyfarth Shaw LLP. All of the firms have large and well-respected practices in the traditional labor law areas of unfair labor practice litigation and representation cases that the five-seat board hears each year.

Bloomberg BNA compiled the list from the NLRB’s record of published decisions in unfair labor practice and representation cases.

The NLRB’s published decisions are usually final board rulings in unfair labor practice cases and election proceedings. They do not include unpublished decisions or reflect the legal work performed by law firms in thousands of cases that are filed each year in NLRB field offices and resolved before reaching the board.

Labor Practices of 200 or More Top List

Littler “has been at the forefront of litigating today’s most pressing labor issues, including the proposed persuader regulations, the NLRB’s ‘quickie’ election regulation changes, and other recently enjoined regulatory changes,” according to Mark W. Schneider, John M. Skonberg, and Tanja L. Thompson, co-chairs of Littler’s traditional practice group.

The firm represents public sector employers and private companies in a wide range of industries and publishes reports, articles and newsletters on issues and practice areas of interest to its clients, trade groups and other associations.

The law firm has 1,218 lawyers in 75 offices worldwide and more than 200 attorneys in its labor-management relations practice group, including more than 30 former NLRB attorneys.

Jackson Lewis has 800 lawyers working in 56 offices, including approximately 200 traditional labor law practitioners.

Founded in 1958, the firm’s recent labor law clients have included health-care systems, institutions of higher education, major corporations and the New York Yankees.

Jackson Lewis stresses educating, updating and training all of its lawyers, Jonathan Spitz, a principal in the Jackson Lewis Atlanta office and a co-leader of the firm’s labor and preventive practices group, told Bloomberg BNA. In 2016, the firm established an intranet page for its labor and preventive practices group, providing news, research, work product and links to internal and external resources for its attorneys.

Spitz said the firm offers clients not only its analysis of trends and developments, but also its recommendations on “how best to minimize the likelihood of union organizing, agency charges, litigation or other workplace disruptions.”

Firms Also Bring In ERISA Class Action Business

The third firm on the list, Ogletree Deakins, also was among the list of law firms getting the most business in 2016 defending large employers in Employee Retirement Income Security Act class actions.

Mary Lou Field, public relations manager, told Bloomberg BNA that Ogletree represents clients in labor matters in all major industries and has handled NLRB unfair labor practice matters for more than 650 employers since 2011. Founded in 1977, the firm has more than 800 lawyers practicing in 49 offices, with 200 attorneys in the firm’s traditional labor practice group.

The spokeswoman noted the law firm’s lawyers include former NLRB attorneys, including a former board member, and two lawyers who are former union organizers. Ogletree represents employers in all major industries before the NLRB and federal courts, and the spokeswoman said the firm has established a niche in defending employers against NLRB bids for injunctive relief and remedial bargaining orders.

Morgan Lewis & Bockius, with 29 offices and nearly 1,850 lawyers worldwide, has more than 250 attorneys in a labor and employment practice group that includes 34 lawyers focusing on labor-management relations issues. Fifth on the list of firms practicing before the NLRB, Morgan Lewis topped the list in ERISA class action business over the past year.

For more than 50 years, Morgan Lewis has built a national reputation for representing major clients in labor law matters, including practice before the NLRB, labor arbitrators and federal courts, Jennifer McNally, senior manager, business development and marketing, told Bloomberg BNA. Two former NLRB members are Morgan Lewis attorneys.

The firm will work closely with clients to “navigate the changing legal landscape as it unfolds” after the recent presidential election, the representative said. Morgan Lewis expects a reversal of many of the NLRB’s recent initiatives, “from the joint employer doctrine to arbitration agreements to union election rules.”

Client Updates Via Web-Based Programming

Fisher Phillips, number four on the list representing employers before the NLRB, was founded in Atlanta in 1943, and has 360 attorneys across 33 offices, Kevin Sullivan, chief marketing officer, told Bloomberg BNA.

The law firm’s traditional labor law practice includes representation of employers before the NLRB and advice to unionized and nonunion employers about their labor law obligations.

Fisher Phillips clients uses newsletters, legal alerts and web-based programming to keep clients up to speed on labor law developments.

Citing the increased scrutiny of employee handbooks and employment policies by the NLRB and other agencies, a Fisher Phillips representative told Bloomberg BNA the firm is committed to advising employers about the latest enforcement trends, as well as “emerging challenges lurking around the corner.”

To contact the reporter on this story: Lawrence E. Dubé in Washington at ldube@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com

For More Information

NLRB published decisions are available at https://www.nlrb.gov/cases-decisions/board-decisions.

Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.

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