SAN FRANCISCO — National Labor Relations Board (NLRB) Chairman John Ring spoke of his affinity for rulemaking Thursday and suggested that the Board "should do more of it." Among other things, Ring identified the possibility of regulations regarding union/employee access to employer property, speaking at the American Bar Association's 12th Annual Labor and Employment Law Conference.
The issue remains unsettled and while some recent developments have emerged that appear favorable for employers, NLRB also determined just weeks ago that a Michigan Burger King franchisee violated the National Labor Relations Act (NLRA) when it used its anti-loitering and anti-soliciting policies to discipline employees discussing a strike in its parking lot.
Potential rulemakings
A property rule likely wouldn't be the NLRB's first under Ring, however. Following unsuccessful attempts to reverse the Board's Obama-era stance on joint employment via litigation, it has now proposed to do so via regulation. NLRB also is in the very early stages of a rulemaking on so-called quickie elections. A proposed rule is expected "sometime this winter," Ring said, but noted that the Board would likely approach the issue through a series of smaller rulemakings.
"I have been a big proponent of rulemaking for many years," Ring told conference attendees; "I think [it] allows us to address areas of the law in a more holistic way." For the joint employment rule, for example, the Board plans to provide examples through hypotheticals, he said.
"Candidly — and this is just my view — but the Board has been doing rulemaking through case adjudication" in recent years, he said. "Why don't we just be honest and do rulemaking the way we're supposed to do rulemaking?" Ring asked, adding that it allows for precedent changes in an orderly and predictable way.
"I think you could take old chapters of the developing labor law and codify them," Ring said — a statement that was met with nervous laughter from the audience. "I don’t know that we need to do that yet," he clarified, but noted that he plans to look at complicated areas as possible candidates for regulation. "One area that comes to mind [is] access to employer property," he said. "It's an area where there are a lot of different components to the rules."
But he also said he welcomes suggestions from stakeholders. Indeed, when asked about the possibility of regulations offering model handbook policies, Ring said "that's exactly the kind of thing we should be thinking about possibly through a rulemaking process."
Lauren McFerran is the Board's lone Democrat and, during the panel discussion, said that she remains unconvinced that rulemaking can be used to address as many issues as the majority seems to believe. Joint employment, specifically, "strikes me as an area of the law that's hard to make broad generalizations about," she said. Email rules, however, like those addressed in the well-known Purple Communications case, could be an area where the Board could make broad statements that would be widely applicable, she said. But "joint employment is just so fact-bound," she said; it's "difficult for me to see [that] as an area where we can make broad proclamations."
The Board also was asked about its efforts to review internal ethics and recusal procedures — an issue that made headlines when a recusal problem torpedoed the Board’s previous efforts to address joint employment. Board members are in the process of researching this issue and meeting with other agencies to do some benchmarking, Ring said. But again, it all comes back to regulation: "Our end goal … is to actually have some type of rule that we would publish," Ring said; "we are committed to getting something put together soon."
