Following up on his earlier announced intent, President Trump has named Acting Chairman Philip A. Miscimarra to serve as Chairman of the National Labor Relations Board. Miscimarra has served as Acting Chairman since January 23, 2017, and had served as a Board Member since August 7, 2013. His 2013 nomination was approved unanimously by the Senate HELP Committee, and he was confirmed by the Senate on July 30, 2013.
His current term expires on December 16, 2017. Based on his numerous dissents filed during the previous administration, one might reasonably expect Chairman Miscimarra to pursue a fairly aggressive agenda this year of rolling back the more extreme and overreaching Obama Board decisions. Likely targets include:
- the amorphous Browning-Ferris standard for finding joint employment status;
- the equally broad Miller & Anderson standard for including third-party employees and regular employees in single units without mutual consent;
- the largely discredited D.R. Horton holding that class and collective class action waivers violate the Act;
- the status of graduate teaching assistants as “employees” under the Act;
- the Purple Communications case’s creation of employee and union rights to use company equipment for organizing and union activity;
- the ever-expanding scope of “protected concerted activity” and its impact on all manner of unrelated workplace and handbook policies; and
- the expedited representation election rules — and the extreme interpretations which Regional Offices have enforced during elections.
Of course, significant obstacles loom in the way of such an agenda — chiefly in the current composition of the Board. There remain on the Board two Democrats, appointed by President Obama, whose terms do not end until 2018 & 2019; and, two vacancies in the traditional Republican seats to be filled by President Trump. There is no current sense that nominations, let alone confirmations, are imminent. Moreover, Democrat appointee Richard Griffin, the former General Counsel for the International Union of Operating Engineers, remains the Board General Counsel until the later of his resignation or expiration of his term in November 2017.
In a Board press release, Miscimarra said of his appointment:
It is a great honor to be named NLRB Chairman by the President…. The Board has the important responsibility of applying the National Labor Relations Act in an even-handed manner that serves the interests of employees, employers and unions throughout the country. I remain committed to these efforts.