President Trump tapped Philip Miscimarra to head the National Labor Relations Board, the government's main labor law enforcement agency. Miscimarra is the only Republican on the board and has been a frequent critic of the actions of its Democratic majority.
"It is an honor to be named NLRB acting chairman by the president. I remain committed to the task that Congress has assigned to the board, which is to foster stability and to apply the National Labor Relations Act in an even-handed manner that serves the interests of employees, employers and unions throughout the country," Miscimarra said.
He will replace current board president Mark Gaston Pierce, who will remain on the board until his term runs out on Aug. 17, 2018. Miscimarra's term runs through Dec. 17 of this year. The only other board member is Lauren McFerran, whose term expires in 2019. The five-member board has two open seats.
Miscimarra was a former senior fellow at the University of Pennsylvania's Wharton Business School, where he received his doctorate. He had been a management-side labor lawyer in private practice.
He was nominated by former President Barack Obama to be on the board in 2013. By tradition, the president picks the board's three-member majority and accepts the opposition party's proposals for the two other members.
Once a fairly obscure federal agency, the board became highly activist during Obama's administration, seeking to expand and reinterpret existing federal rules to expand its reach. Miscimarra has been a frequent critic of those efforts.
The board's potentially most far-reaching change came in 2014 when the board charged McDonald's Corp. as a "joint employer" in a series of unfair-labor-practice complaints against its franchised restaurants, even though the franchisees were mostly privately owned, and therefore legally separate, businesses. The labor board has charged several other businesses under this expanded joint employer definition since then. Miscimarra has repeatedly slammed this approach in dissenting opinions.
When the board ruled last year in the McDonald's case that the company could not subpoena evidence to buttress its claim that it was merely protecting its company brand against a coordinated public relations campaign by organized labor, Miscimarra compared it to a murder suspect being barred from arguing that he acted in self-defense.
"It is not appropriate at this juncture to determine whether the 'brand protection' defense has merit. McDonald's has a right to pursue this defense to the extent it has a good-faith relation to matters raised in the complaint," Miscimarra said in a dissent about six times as long as the majority opinion.
"Miscimarra has authored some of the more vigorous and compelling dissents we have seen in some time. An examination of those dissents may offer a roadmap of what we might expect going forward, as the board moves toward a return to full strength," said Steven Bernstein, a lawyer with the Florida-based management side firm Fisher & Philips.
Miscimarra did join his colleagues in one notable case earlier this year, agreeing that the Trump International Hotel in Las Vegas must recognize and bargain with the union seeking to represent its workers. The hotel, which is co-owned by Trump, refused to deal with the union for a year, claiming it didn't fairly win a worker election.
Trump apparently had no hard feelings.
Miscimarra is apparently something of a sci-fi geek. In a labor board opinion last year, he discussed how the TV series Star Trek explains labor law.
"The [National Labor Relations] Act does not require parties to maintain Spock-like objectivity towards one another when resorting to economic weapons. Nor is it realistic to believe that parties in these circumstances will remain in a dispassionate state of cool detachment," he said. A footnote in the opinion explained: "Mr. Spock — a main character in the well-known television and movie series 'Star Trek' — was perhaps best known for his (largely successful) efforts to suppress emotion. His father was from the planet Vulcan, where beings were 'noted for their attempt to live by reason and logic."