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Employer attorneys have high praise for Philip A. Miscimarra, acting chairman of the National Labor Relations Board, who was named permanent chairman by President Donald Trump last week and who, they predict, will move the agency toward more employer-friendly policies.
Any significant change, though, will probably have to await a full complement of five NLRB members. At this point, Mr. Miscimarra, who has served on the board since August 2013 and was named acting chairman by President Trump in January, is the agency’s sole Republican member, with two Democrats also serving as board members. President Trump is expected to fill the board’s two vacancies with Republicans.
Among the issues of concern to employers are NLRB rulings on employee handbooks and the concept of joint employment.
Mr. Miscimarra “is an outstanding choice,” said James F. Hendricks Jr., a partner with SmithAmundsen P.C. in Chicago, who describes him as a “seasoned labor lawyer.”
“He’s very smart” with a “practical way of analyzing board cases” that keeps in mind “the real-world implications of board decisions on employers and employees,” said John T. Merrell, a shareholder with Ogletree, Deakins, Nash, Smoak & Stewart P.C. in Greenville, South Carolina.
His dissenting decisions as the board’s lone Republican “have been at a very high intellectual level” and “very well-reasoned,” said Steven M. Bernstein, regional managing partner with Fisher & Phillips L.L.P. in Tampa, Florida.
“There’s a cautious optimism” that Mr. Miscimarra’s appointment “will signal a move by the agency to be more balanced in their analysis” and make decisions “that takes the business community into account” as well as organized labor, Mr. Bernstein said.
“They will be hopefully reinstating the law that was in effect for years and years that the NLRB overturned” and “stop attacking employers,” Mr. Hendricks said.
Non-union-related issues experts anticipate the board will deal with include rulings that have struck down employer handbook language.
The NLRB’s efforts to prosecute firms for handbook violations “are not only very onerous to the companies, they don’t make sense,” said Michael A. Kaufman, co-managing partner at Kaufman Dolowich Voluck L.L.P. in Woodbury, New York. “They’re looking to make business more complicated for employers.”
Observers point to Mr. Miscimarra’s dissent in an April 2016 NLRB case in which the majority held in William Beaumont Hospital and Jeri Antilla that the Royal Oak, Michigan-based hospital’s handbook violated federal law.
The board ruled in that case, for instance, that a prohibition against conduct that “impedes harmonious interactions and relationships” was “overly broad.”
“Mr. Miscimarra had a dissenting in that case where he proposed a whole new framework for analyzing employer handbook polices,” said Mr. Merrell.
“It’s basically a balancing test between the possibility that a policy will inhibit some protected activity and the legitimate business justifications behind the policy,” he said.
Another issue the board may tackle is the concept of joint employment. In its 3-2 decision in 2015 in Browning-Ferris Industries of California Inc., the NLRB overturned the standard in place since 1984 that firms must have “immediate and direct” control over a worker to be considered a joint employer.
It held instead that a company need have only indirect control of a worker, and not even exercise that control, to be considered a joint employer.
The Obama administration has been rewriting franchise law, said Mr. Hendricks. “I am confident that the new board will take that in a different direction.”
“There’s a lot of cases floating around right now” on this issue, said Mr. Kaufman. “You really just need one of these cases for the board to make a decision” that will change the law.
The National Labor Relations Board has “refined” its standard for determining joint-employer status in a case that businesses warn could put subcontactors and franchisees out of the business.