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