Trumps Appoints NLRB’s Miscimarra

In case you missed it, late last week President Donald Trump  appointed Philip Miscimarra as the permanent head of the National Labor Relations Board, a role the Republican had been holding since Trump nominated him to temporarily fill the position shortly after his inauguration.

According to Reuters, Miscimarra, a former partner at Morgan Lewis & Bockius, was first appointed to the Board in 2013 by then-President Barack Obama “and has routinely broken with his Democratic colleagues on key labor issues.”

We first wrote about Miscimarra back in February, when legal experts weighed in on where they thought his appointment would take the board:

Michael Lotito, a partner and co-chair of the Workplace Policy Institute at Littler Mendelson, calls the appointment of Miscimarra the “first step” in a process of returning the board to balancing the rights of employees with the legitimate interests of employers as set forth in the National Labor Relations Act.

“Over the past five years, the NLRB has reversed over 4,500 years of precedent, often over the dissent of [new chair]  Miscimarra,” Lotito says. “Now, the new administration must appoint two new members to the Board to fill the vacancies that exist.  Hopefully, that will happen soon followed by quick confirmation. Only then, with the board at full strength, will it be able to tackle critical workplace issues needing a reasoned resolution.”

Steve Bernstein, a partner at Fisher Phillips in Tampa, Fla., says that, as the NLRB’s lone Republican for the past several months, Miscimarra  has authored some of the more vigorous and compelling dissents seen in some time:

“An examination of those dissents may offer a roadmap of what we might expect going forward, as the board moves toward a return to full strength,” he says.

A number of Miscimarra ‘s dissents call for greater clarity in the standards to be applied by his agency, Bernstein says, along with a more flexible approach to evaluating employer policies that takes into account the unique justifications for the policies themselves.

More recently, Miscimarra  has applied that “common-sense” approach to a number of NLRB doctrines, ranging from the employee status of graduate teaching assistants to the supervisory status of patient care coordinators, Bernstein says. Miscimarra, he adds, also has challenged controversial decisions invalidating binding arbitration provisions and limiting an employer’s right to insist upon confidentiality in workplace investigations.

“At the same time,” Berstein says, “he has openly questioned the NLRB’s apparent departure from long-standing precedent with respect to doctrine governing the use of permanent striker replacements, along with the test for joint-employer status.”