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Senate HELP Committee Set to Vote on NLRB Nominee


Today, President Donald Trump's third nominee, John Ring, to the National Labor Relations Board ('NLRB') is set to have a confirmation vote on his nomination by the Senate Committee on Health, Education, Labor, and Pensions ("HELP"). As always, many readers might wonder what is next or what to expect with the confirmation vote.  Let us break things down to give a quick overview of what to expect moving forward.

Ring is a labor attorney with Morgan, Lewis & Bockius with an expected tendency to side with employers in labor disputes, should he be confirmed.  President Trump nominated Ring a few months ago to fill a vacant seat on the NLRB.  Readers might recall that last week, the HELP Committee held a confirmation hearing on the nomination.  As expected, in light of the NLRB's decision to vacate its decision in Hy-Brand, many Democrats on the Committee chose to make conflict of interest matters a focal point and grilled Ring on the topic.  Despite the efforts of Democrats to make conflict of interest a major point of contention in an attempt to weaken Ring's nomination, I do not think they convinced any Republicans on the Committee to vote against the nomination.  (Remember, Republicans have majority control of the Committee.  So long as Republicans vote along party lines, Ring's nomination should clear the HELP Committee and go before the full Senate for a vote...which also has a majority of Republicans).

As I noted previously, with it being being expected that Republicans will confirm Ring's nomination, that would give Republican appointed members on the NLRB a 3 - 2 majority.  Attention would then quickly turn to whether the NLRB would take up another joint employer case which would overturn Browning-Ferris.  However, would anyone on the NLRB recuse themselves?  Assuming Emanuel did when another case came before the NLRB, that would likely put an NLRB decision at 2 - 2 (assuming all Board Members voted along 'party lines' based upon which President appointed them).  If that happened, Browning-Ferris would continue to remain in place and Republicans might have to wait until they got a 4 - 1 majority before attempting to overturn the new joint employer standard.  Or perhaps the NLRB would find a case in which no Board Member had to recuse themselves.  I think that is more likely and certainly something the three Republican appointed Board Members would prefer.  

Time will tell, but the big takeaway here is that even if Ring gets confirmed by the HELP Committee today (which is expected), and confirmed by the full Senate (which is expected), overturning Browning-Ferris in the short term is no sure thing.  Maybe Congress can act on the Save Local Business Act to avoid and issues with getting an NLRB decision to overturn Browning-Ferris?


For a CSPAN video of Ring's confirmation hearing:  https://www.c-span.org/video/?441914-1/nlrb-nominee-john-ring-testifies-confirmation-hearing

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