President Trump has tapped National Labor Relations Board Member Philip Miscimarra to be acting Chairman. Mr. Miscimarra will replace Mark Gaston Pearce who served as the NLRB Chairman under President Obama since 2011. Mr. Miscimarra is a graduate of the University Of Pennsylvania School Of Law and the Wharton School of Business. Prior to joining the NLRB in 2009, he worked for several firms representing employers in Chicago as well as serving as a fellow for the Wharton School of Business Center for Human Resources.
While a Board member Mr. Miscimarra has been a vocal critic of the NLRB’s activist streak enjoyed under the Obama administration where the NLRB reinterpreted existing federal rules to expand its reach.
Most notably was Mr. Miscimarra’s lengthy dissent in the case of McDonald’s USA, LLC, 363 NLRB No. 92 (January 8, 2016) a ruling that concerned the joint-employer liability before it had been proven that an unfair labor practice (“ULP”) had occurred. In that case, the NLRB ruled that the Administrative Law Judge’s decision: “provides for an orderly presentation of evidence that helps to protect each Respondent’s confidentiality and due process rights, as well as controlling the efficiency and costs of litigation for those individual businesses.” The Board reasoned that preliminary joint employer evidence is necessary to determine whether McDonald’s is a proper party and also potentially probative of the unfair labor charges.
In a scathing dissent, Miscimarra found the NLRB’s ruling to be a clear departure from precedent in order to expand the reach of the General Counsel:
Now, as the train departs for an extended journey, we are discarding decades of Board experience adjudicating these types of claims in a conventional way. Instead, we are substituting entirely new procedures that—rather than fostering fairness and avoiding undue burdens on private party-litigants—have two primary purposes: (i) to forge ahead with a single consolidated case regardless of its epic proportions; and (ii) to facilitate the General Counsel’s efforts to impose liability on McDonald’s USA for whatever ULP’s are proven to have occurred. Unfortunately, the Case Management Order accomplishes these objectives by disfavoring the separate respondents and unfairly diminishing their ability to fully participate in relevant proceedings.
In another ruling, Piedmont Gardens, 362 NLRB No. 139 (June 26, 2015), Mr. Miscimarra again dissented from the majority opinion of the Board. In that case a majority agreed to abandon its automatic “witness statement” test and replaced it with a “balancing test” requiring an employer to determine on a case-by-case basis whether a written statement by an employee-witness must be produced to a union. This was contrary to the longstanding policy of the NLRB in Anheuser-Busch which had held that there was an exception to disclosure to the union concerning witness statements because of the possibility witnesses (i.e. employees) would be reluctant to give statements absent assurances. In his dissent Miscimmara found that this new rule would negatively impact an employer’s ability to investigate and, if necessary, remedy workplace misconduct:
When employees step forward to provide information that may involve a coworker’s misconduct, there is little question that they risk coercion, intimidation, harassment, and retaliation, and this risk is especially high if the employer is required to disclose their witness statements to a union. The rule of Anheuser-Busch protects witnesses from this very real concern. That by itself is reason enough to adhere to the rule of Anheuser-Busch, but it begets a further reason to do so: because the Anheuser-Busch rules enables employers to promise employees that their witness statements will remain confidential, it encourages employees to step forward in the first place and participate in investigations of workplace misconduct.
Given Mr. Miscimarra’s track record, it would appear the NLRB is, once again, going to be changing course and taking less of an activist role; especially with cases concerning supervisory status as well as temporary and secondary strikes coming down the pipe.
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