In Focus: NLRB Chairman Miscimarra Will Step Down in December

By Allen Smith, J.D. Aug 9, 2017
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​National Labor Relations Board (NLRB) Chairman Philip Miscimarra, a Republican, has announced he will depart when his first term on the board expires Dec. 16; he declined to serve a second term. His departure will leave the board evenly split 2-2 among Democrats and Republicans, assuming that Republican nominee William Emanuel is confirmed in September.

Dissenting from Joint-Employer Decision

Miscimarra has dissented from some of the board's more controversial decisions, such as its joint employer opinion, Browning-Ferris, arguing that the NLRB's new "indirect control" standard "rewrites the decades-old test for determining who the 'employer' is." He predicted that the new test would "subject countless entities to unprecedented new joint-bargaining obligations that most do not even know they have, to potential joint liability for unfair labor practices and breaches of collective bargaining agreements." (Constangy, Brooks, Smith & Prophete)

Opposition to Micro-Bargaining Unit Opinion

Miscimarra also opposed the NLRB rulings allowing micro-bargaining units to be formed. For example, in its Macy's decision, the board held that a store's 41 cosmetic and fragrance employees constituted an appropriate bargaining unit. The employer had argued this was not an appropriate unit and that the smallest appropriate unit included sales employees in other departments of the store as well as stock and other support workers. In a dissent, Miscimarra argued that the majority's approval of the proposed unit disregarded similarities among all sales employees at the store and threatened to produce an unstable bargaining relationship by creating divisions in the workforce that are irreconcilable with the structure of the work setting. (Epstein Becker Green)

Protected Concerted Activity

Under the Obama administration, the NLRB expanded the reach of the National Labor Relations Act (NLRA) to nonunionized workforces through its broad interpretation of protected concerted activity. In particular, it held that numerous employee handbook provisions, including rules on civility, violated the NLRA. Miscimarra has criticized the board for "messing with nonunion workforces." (SHRM Online)

[SHRM members-only toolkit: Complying with U.S. Labor Relations Laws in Nonunion Settings]

3-2 Republican Majority Through December

If Emanuel is confirmed, the NLRB will have a 3-2 Republican majority until Miscimarra's term ends in December. President Trump is expected to replace Miscimarra with a Republican. During the gap between Miscimarra serving on the board and his replacement filling his seat, the board will return to its current 2-2 divide along party lines. (National Law Review)

Reversal Wish List

Business interests have a lengthy wish list for reversals of opinions issued during the Obama administration. In addition to overturning the Browning-Ferris and the micro-bargaining unit opinions, companies would like the board to retighten the loosened rules regarding what types of business or witness information must be shared with unions and alter the way damages have been calculated under the Obama board. (SHRM Online)

Family Reason for Leaving

Miscimarra declined to serve another term because, he said, he has three kids going to college. Private practice likely will pay the bills easier than staying in a government job. (Constangy, Brooks, Smith & Prophete)


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