Has Labor Board ‘Protected Workers Right Out of a Job’? (1)

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By Chris Opfer

The National Labor Relations Board swung so far in favor of workers’ rights during the Obama administration that it may have stunted job growth, Chairman John Ring (R) said June 6.

“There has been somewhat of a myopic focus that often didn’t consider the impact on jobs, whether that be the creation of jobs or how these restrictions might stymie economic growth,” Ring told a crowd at a Cornell University event. “In some cases, I think you could make a pretty good argument that we’ve protected workers right out of a job.”

Ring, who joined the board in April, said the board should consider how its activity affects jobs and bring a better balance to competing interests among workers, unions, and businesses.

Ring’s comments offer a glimpse at how he may approach the wide variety of labor issues that may come before him, both as a board member and the agency’s lead administrator. He indicated that he may well use the regulatory process—rather than individual case decisions—to update legal precedent set by the board during the Obama administration.

“To me, there are opportunities for rulemaking in a whole host of areas where you can lay out for employers, unions, and employees what the rules are,” Ring said. “Particularly in areas where, as the Department of Labor and other agencies have engaged in rulemaking a fair amount, we give specific factual examples: this is, this isn’t.”

Ring pointed in particular to previous approaches to workplace rules and employee picket line misconduct as areas where prior boards may not have properly considered business impacts.

The chairman recently announced that the board will propose a rule updating its approach to joint employer liability, a closely watched issue that has drawn heated debate. The NLRB briefly reverted to a more limited standard—making it harder to tag one business as a joint employer of another’s workers—before dropping the ruling in response to conflicts-of-interest concerns surrounding Member William Emanuel (R).

The chairman also gave some insight into how he intends to update ethics restrictions on board members, stemming from the Emanuel saga. He said he was “somewhat skeptical”—before he got to the board—when the NLRB’s inspector general and ethics officer said Emanuel shouldn’t have participated in one joint employer case because of his former law firm’s involvement in a related case.

The inspector general and ethics officer went beyond a standard policy barring members for two years from participating in cases in which their former client or law firm is involved, Ring told Bloomberg Law following the event in New York City.

“Here they went further and said we’re conflating two cases,” he said. “There are two questions: One, can you do that? And two, once you do that do you have the authority to disqualify a member?”

‘Jobs, Jobs, Jobs’

Ring said he was attracted to a job in the Trump administration in part because of what he called President Donald Trump’s economic message.

“I think an argument could be made that our focus as a country on jobs, jobs, jobs and the need for strong job growth is something that may have been lost a little bit in our labor laws in recent years,” Ring said.

Some labor lawyers who attended the event expressed concern about the idea of making case decisions based on jobs implications. Daniel Ratner, who represents workers and unions for Levy Ratner in New York, said he was “a little bit shocked” by some of Ring’s comments.

“If you’re taking the position that you’re the guardian of existing jobs or helping the employer make new jobs, isn’t there a position of inherent bias there?” Ratner asked.

But Ring said he’s not advocating that the NLRB adopt “jobs, jobs, jobs” as a lens for reviewing actual disputes that come before the board.

“All I was suggesting is that there needs to be a more even balance,” Ring said. “And if there is a more even balance, I think that will help job growth and economic opportunity.”

Changes in the Field

Ring also said NLRB General Counsel Peter Robb is continuing to consider possible changes to the board’s regional director system.

Although Congress has kept the board’s funding steady, Ring said that’s essentially a funding cut because of cost increases. He also pointed to the White House’s requested budget cuts and an attempt to rescind some of the money already allotted to the agency as justifications for possible tinkering.

“The general counsel has taken a lot of undeserved heat for considering some of these reorganizations,” Ring said. “I really think it would be irresponsible for us to not at least look into some type of reorganization.”

Robb is considering various changes, which include eliminating or combining certain field offices, stripping the agency’s regional managers of their senior executive status, and shifting more decision-making to his headquarters office. The potential tinkering has drawn concerns, both inside and outside the agency.

Ring said he had “spirited discussions” with employees in the agency’s Manhattan and Brooklyn regional offices earlier the same day. He noted that the agency’s overall caseload has been steadily declining.

“Part of the initiative here is to take a very hard look at where the caseloads are and to try to do some right sizing based on that,” he said.

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