National Labor Relations Board (NLRB) Chair Philip Miscimarra’s reported decision to leave the Board when his term expires on December 16 rather than allow himself to be considered for another term has probusiness Board watchers looking ahead and lamenting the loss of his contributions to NLRB decisions.
Kevin C. McCormick, an editor of Maryland Employment Law Letter and chair of the labor and employment section at Whiteford, Taylor & Preston L.L.P. in Baltimore, said he was surprised by the news. He called Miscimarra’s coming departure a “great loss” but “no reason to panic.”
“[Miscimarra is] a great scholar of NLRB procedure and law and has the right mindset in my viewpoint,” McCormick said after news of the decision was reported on August 10. “He’s a very, very smart guy. He knows this area of the law very well,” so the effect of his absence will be significant.
“You can tell he’s not a hit man. Everything is well thought out and reasoned,” McCormick said of Miscimarra’s dissents to decisions released while the Board was dominated by Democrats. “He just has a perspective that’s a little to the right of the others.”
Democrats held a majority on the five-member Board for a decade, but the makeup is changing as President Donald Trump’s nominees for two open seats gain confirmation. The current Board members are Democrats Mark G. Pearce and Lauren McFerran and Republicans Miscimarra and Marvin E. Kaplan, who was confirmed by the Senate on August 2 and sworn in on the same day news broke that Miscimarra will leave the Board in December. The Board’s fifth seat is expected to be occupied by William J. Emanuel, whose nomination is being considered by the Senate.
McCormick said Miscimarra’s service will be missed. “I think he’s served the Board well and is a great role model for labor and employment lawyers.”
James M. Sconzo, an editor of Connecticut Employment Law Letter and chair of the labor and employment practice team at Carlton Fields in Hartford, Connecticut, agrees that Miscimarra will be missed by probusiness interests. “Chair Miscimarra has written very thoughtful, and persuasive, dissents in some of the controversial opinions issued by the aggressive Obama Board,” he said, adding that the dissents took on the Obama-era Board’s “conclusions that politically appeased their constituents.”
“While Miscimarra will be missed, President Trump will certainly replace him with a probusiness voice who will work to undo some of the radical damage inflicted by the prior Board,” Sconzo said. He added that with a Republican majority, the Board will focus on pulling back some of the Obama-era decisions such as the Browning-Ferris “indirect-control” standard regarding joint employment and notions about concerted activity related to “wording in personnel manuals or reasonable corporate responses to objectively bad employee behaviors.”
Sconzo is also looking ahead to the Board having a new General Counsel. The General Counsel selects cases to prosecute (and therefore sets the Board’s agenda and pace) and frames the issues, Sconzo said. The position is now filled by Obama appointee Richard F. Griffin, Jr. His term ends this fall. “Once President Trump fills that position and has the majority of the Board, the Trump administration can set major labor policy,” Sconzo said.