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Reversals in the Future?

New NLRB Chairman Dissented from Controversial Decisions

May 3, 2017

Philip Miscimarra was named Chairman of the National Labor Relations Board by President Trump on April 24, 2017.  He had been named Acting Chairman soon after President Trump’s inauguration. 

Chairman Miscimarra is a former management-side lawyer and a Republican.  In 2013, he was nominated by then-President Obama and confirmed by the Senate to be a Board member for a term that expires in December 2017.  (See NLRB Primer below.)

As a Board member, Miscimarra frequently has disagreed with his Democratic colleagues, especially when they make changes to long-standing precedents. 

For example, in Browning-Ferris Industries of California, 362 NLRB No. 186 (2015), the Board’s landmark 2015 case expanding when a business can be considered a “joint employer” of another company’s workers and, thereby, legally responsible for the other company’s alleged labor law violations, Miscimarra wrote a strong dissent.  In his dissent, Miscimarra made the point that, “No bargaining table is big enough to seat all of the entities that will be potential joint employers under the majority’s new standards.” 

In Cellco Partnership d/b/a Verizon Wireless Inc., 365 NLRB No. 38 (2017), a February 2017 decision, the Board ruled (yet again) that an employer’s facially neutral workplace policies could be interpreted as “chilling” employee communications about working conditions and therefore violate Section 7 of the National Labor Relations Act.  In dissent, Miscimarra wrote that the way the Obama Board analyzed common policies “defies common sense.”  He urged the adoption of a new balancing test that would not only focus on employees’ rights under the Act, but that would also take into account employers’ legitimate justifications for a particular policy.

Miscimarra’s opinions in these cases give employers hope that, once President Trump’s other nominees are in place, the Board may reexamine and reverse some of its recent controversial decisions. 

Primer on the NLRB

  • The NLRB is led by a five-member Board supported by a General Counsel.

  • Board members serve staggered five-year terms; the General Counsel serves a four-year term.

  • Board members and the General Counsel are nominated by the President and confirmed by the Senate.

  • Generally, three Board members are from the President’s party and two are from the other party.

  • Currently, the Board has one Republican member, Philip Miscimarra, and two Democratic members, while two seats are vacant; President Trump is expected to nominate members for the vacant seats soon.

  • The current General Counsel is a Democrat and his term expires in November 2017; thereafter, President Trump will nominate a new General Counsel.

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