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NLRB Chair Responds to Senators, Confirms NLRB Will Engage in Rulemaking for Joint Employer Standard

New NLRB Chairman John Ring has stated that the Board intends to use rulemaking to create a new joint employer standard.

The statement was in response to a May 29 letter from Democratic Senators Elizabeth Warren, Kirsten Gillibrand, and Bernie Sanders that harshly questioned whether the agency planned to use rulemaking to create a new joint employer standard to evade ethical restrictions in deciding cases that come before the NLRB.

The Democratic Senators also accused Ring of being biased and that the rulemaking outcome was predetermined. The Senators requested the NLRB refrain from using the rulemaking process to change the current union-friendly joint employer standard. (For more on the current joint employer standard under Browning-Ferris Industries, 362 NLRB No. 186 (2015), see our post, Labor Board Considers Joint Employer Standard Rulemaking.)

In his June 5, 2018, response, Ring confirmed that the NLRB will engage in rulemaking to determine what the standard is for two entities to be deemed a joint employer under labor law. Ring stated that a Notice of Proposed Rulemaking (NPRM) would be issued by this summer.

Ring denied that there was any intent to evade ethical restrictions in using the notice-and-comment rulemaking process. He explained that the rulemaking process would allow the NLRB to consider all views on what the joint employer standard ought to be. He also explained that rulemaking will permit the Board to address the joint employer standard in a comprehensive manner that will provide greater guidance for all interested parties — employers, unions, and employees — than traditional case-by-case adjudication allows.

Ring concluded by pledging to keep an open mind and to consider all points of view received from interested parties during the rulemaking process. However, he also reminded the Senators that he has his own opinions on this issue based on his many years as a management-side labor lawyer, and he should not be expected to be devoid of opinions any more than some of the previous union-side NLRB members were when they embarked on rulemaking to change the NLRB’s representation-case procedures in 2011 and 2014. The rules ultimately resulted in shorter, union-friendly election procedures.

For now, the public will have to wait for the NPRM, affording the opportunity for public comment on a newly proposed rule. A majority of the five-member NLRB will need to approve the proposed rule, and any new joint employer standard would be applicable only prospectively after approval of a final rule.

Michael Moberg contributed to this post.

Jackson Lewis P.C. © 2018

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Howard Bloom, Jackson Lewis, labor union attorney, unfair practice investigations lawyer, employment legal counsel, bargaining law
Principal

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification...

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Philip B. Rosen Jackson Lewis  Preventive Practices Lawyer & Collective Bargaining Attorney
Principal

Philip B. Rosen is a Principal in the New York City, New York, office of Jackson Lewis P.C. He is a member of the firm's Board of Directors and co-leads the firm's Labor and Preventive Practices Group. He joined the firm in 1979 and served as Managing Partner of the New York City office from 1989 to 2009.

Mr. Rosen lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media, reorganizations and reductions-in-force, purchase/sale transactions, sexual harassment and other workplace conduct rules, compliance with the Americans With Disabilities Act, wrongful discharge and other workplace litigation, corporate campaigns and union organizing matters, collective bargaining, arbitration and National Labor Relations Board proceedings. He has been quoted by the press on many labor matters, including the National Labor Relations Board’s recent initiatives on protected concerted activity and the proposed Notice Posting requirements.

Mr. Rosen has extensive experience advising clients developing integrated corporate-wide labor relations strategies - whether the organization is union-free, partially unionized or entirely unionized. He has led teams conducting multi-facility labor-related legal assessments where clients are seeking to develop creative, strategic legal approaches which anticipate major issues and achieve a company’s labor relations goals. Mr. Rosen also has advised clients being confronted with corporate campaigns and requests for neutrality agreements. He has represented organizations seeking to maximize management rights through their development of pro-active employee relations approaches to remain union-free. He also has advised unionized organizations on lawful negotiating strategies – in situations ranging from “hard bargaining” to recapture management rights to more “cooperative” negotiations – in all cases, providing legal advice designed to assist clients in achieving their primary goals.

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