Originally an Obama appointee, Philip Miscimarra was sworn in as a member of the National Labor Relations Board (NLRB) in 2013. Effective January 23, 2017, President Trump has selected Miscimarra to be the NLRB’s Acting Chairman, replacing Mark Gaston Pearce. This change promises a new direction for US Labor Relations, particularly when considered alongside the prospect of a more conservative Supreme Court.
Employers focused on union avoidance have a lot to celebrate, as the Board is expected to revisit and rebalance decisions related to joint employer status, workplace investigation rules and collective bargaining rights in privately operated charter schools.
Reason #1: Joint Employer Status
The NLRB’s 2015 decision to overturn a long-standing precedent on the definition of joint employment was highly controversial, splitting the Board 3-2. For decades, employers were only considered “joint” when both exercised direct control over the same workforce. As a result of Browning-Ferris Industries of California, Inc. (August 2015), the definition has changed. Under the new case law, employers that exert indirect control over terms and conditions of employment can be considered “joint employers” with the entity that exerts direct control over terms and conditions of employment.
Miscimarra wrote a passionate 28-page dissent to the decision, stating that the new definition of joint employer is far more expansive than ever before, and it will cause significant uncertainty in business relationships – particularly relationships involving contract employees. When this issue comes before the Board again, employers have every reason to hope that the Browning-Ferris decision will be reversed.
Reason #2: Workplace Investigation Rules
During Miscimarra’s tenure on the Board, three cases involving the rules of workplace investigations were decided. These included Fresh & Easy Neighborhood Market (July 2014), Banner Estrella Medical Center (June 2015) and Piedmont Gardens (June 2015). From the perspective of employers, these decisions make investigations more complicated, as they cannot require that witnesses refrain from discussing the investigation with other employees and they cannot guarantee that witness information will remain confidential.
Miscimarra was a dissenting vote in all three. He stated that he is concerned about prevention of harassment in the workplace, and he believes the decisions weaken employers’ ability to effectively look into any concerns that employees bring forward. New cases that come before the NLRB may be decided differently under Miscimarra’s leadership, making it possible for employers to keep their investigations more private.
Reason #3: Charter School Union Organizing
Finally, a series of decisions involving publicly funded, privately operated virtual charter schools the NLRB declared that teachers, coaches, psychologists and other counselors have the same collective bargaining rights as their public school counterparts. Miscimarra’s dissent in Agora Cyber Charter School (November 2016) clearly stated that the Board should not assert jurisdiction over charter schools in general – and definitely not in these specific cases. As charter school enrollment continues to increase nationwide, additional cases are expected to come before the NLRB. With Miscimarra’s leadership, the outcome of future cases could be quite different.
Employers have many reasons to be optimistic about the future of labor relations, thanks to President Trump’s appointment of Miscimarra as Acting Chairman of the NLRB. As a whole, Miscimarra’s opinions tend towards a decrease in the power of unions, putting many rights back in the hands of employers. Returning to the previous definition of joint employer, reinstating workplace investigation rules and stepping away from regulation of charter schools are likely outcomes of future cases decided under the new leadership. But take care: this presumed shift in the board’s perspective does not mean that companies can now rest on their laurels. Vigilance against potential union actions and a commitment to building a positive workplace should still remain at the forefront of any corporate strategy, no matter how the political climates may shift.