On January 12, 2018, President Trump nominated Morgan Lewis & Bockius partner John Ring to fill the last vacancy on the five-member Board and, if confirmed by the Senate, this will once again give Republicans a 3-2 majority on the panel after the departure of former Board Chairman Philip A. Miscimarra in December 2017. Mr. Ring, a career management-side attorney, will bring decades of skill and experience to the Board, and will help to restore balance to the NLRB after years of decisions that greatly favored unions and employees under the Obama Board. Indeed, this restoration to a neutral government agency already began during the last week of former Board Chairman Miscimarra’s term when significant labor-friendly decisions – e.g., joint-employer (Browning Ferris Industries), workplace rules (Lutheran Heritage), and micro-unit organizing (Specialty Healthcare) – were overturned.
Moving forward, employers will simply have to wait and see which other Obama-era policies will be invalidated. A few possibilities include employees having a presumptive right to use their employer’s email system to engage in Section 7 activities (Purple Communications), graduate students at private universities being deemed employees under the Act and thus allowed to unionize (Columbia University), and doing away with (or modifying) the ‘ambush’ or ‘quickie’ election rule enacted close to three (3) years ago. At this point, however, this wish list of decisions is just speculation as to what will happen down the road. That said, I am very optimistic further change is coming sooner rather than later.