New NLRB Acting Chairman May Tilt Board Pro-Business

Allen Smith, J.D. By Allen Smith, J.D. January 30, 2017
New NLRB Acting Chairman May Tilt Board Pro-Business

​Philip Miscimarra

President Donald Trump's naming of Philip Miscimarra as acting chairman of the National Labor Relations Board (NLRB) on Jan. 23 will shift the direction of the NLRB toward business interests, but dramatic changes won't happen until the board has filled its two vacant seats, according to Donald Schroeder, an attorney with Foley & Lardner in Boston.

Once the board is fully staffed, expect to see "less focus on finding Section 7 violations in employee handbooks at nonunion employers and a pullback on joint employer actions," said James Hays, an attorney with Sheppard Mullin in New York City.

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Section 7 of the National Labor Relations Act (NLRA) guarantees employees "the right to self-organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection." In recent years, the board has expanded the definition of "concerted activities."

Employers wonder why the board "keeps messing with nonunion workforces," Miscimarra said at the Society for Human Resource Management's 2015 Employment Law & Legislative Conference. During former President Barack Obama's administration, the board issued a number of opinions finding that various provisions of employee handbooks at nonunion employers, including rules on civility, violate the NLRA's concerted activity protections for employees. Management attorneys have criticized such decisions as conflicting with employers' responsibility to prevent workplace harassment.

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The board also has changed the definition of "joint employer" from one company having direct control over another employer to one business having indirect control over another. Hays says he expects the board to return to the direct control test.

Gradual Restoration of 'Balance'

Michael Lotito, an attorney with Littler and co-chair of its government affairs branch, the Workplace Policy Institute, said the appointment of Miscimarra "is a welcome first step in restoring balance to the board."

However, two members of the five-member board are Democrats, and Miscimarra is the sole Republican. For Lotito, co-author of a Dec. 6, 2016, report critical of Obama's NLRB, this means "the board remains 2-to-1 in favor of members who have consistently ignored precedent and ruled almost instinctively against the interests of employers despite underlying facts and prior decisions."

While an acting chairman has a say in the cases that are heard, the order of cases and what's on the front burner, real change won't begin until the Senate confirms two nominees for the vacancies, Schroeder noted. Expect Trump to name these nominees within the next 60 days, he predicted.

Short Acting Chairmanship

Miscimarra will have a relatively short stint as NLRB acting chairman, as his term on the board ends Dec. 16, 2017.

The board is composed traditionally of three members from the party in the White House and two from the minority party. But sometimes Congress does not swiftly confirm board members, leaving the board with less than five members until new members are confirmed. The president nominates all board members, including those from the opposing party. For example, Obama nominated Miscimarra to serve on the board.

Democratic former board Chairman Mark Gaston Pearce's term on the NLRB expires Aug. 27, 2018; his role as chairman ended Jan. 22. A chairman can serve in that role for his or her entire term as a member of the board, but that isn't mandatory.

An acting chairman often is an interim position bridging the gap between one administration's chairman and the next administration's chairman. An acting chairman may have to step down from that role if Congress confirms someone nominated to serve as chairman before the acting chairman's term has ended. Then the acting chairman may return to serving as one of the four board members who are not chairman. Trump has not yet nominated an NLRB chairman.

Democratic board member Lauren McFerran's term expires Dec. 16, 2019.

Prior to his 2013 appointment to the NLRB, Miscimarra was a management attorney with Morgan Lewis & Bockius in Chicago and was a senior fellow in the Center for Human Resources at the University of Pennsylvania's Wharton Business School. Before that, he was an attorney with Seyfarth Shaw.

"It is an honor to be named NLRB acting chairman by the president," Miscimarra said. "I remain committed to the task that Congress has assigned to the board, which is to foster stability and to apply the National Labor Relations Act in an even-handed manner that serves the interests of employees, employers and unions throughout the country."

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