Philip Miscimarra, the new chairman of the National Labor Relations Board, is poised to be the Antonin Scalia of workplace law, business and labor experts say. Like the late Supreme Court justice, he believes that the only thing that matters is what the text of the law explicitly says.
Also like Scalia, he has penned a string of vigorous, sometimes acerbic dissents to his colleagues’ rulings. He will have the opportunity to roll back the board’s recent, mainly pro-union changes now that President Trump has put him in charge of the nation’s main federal labor law enforcement agency – a prospect that has business groups cheering and labor advocates gloomy.
“The fact that he is chairman is encouraging. This is an opportunity to restore some common sense to labor law,” said Glenn Spencer, vice president of the U.S. Chamber of Commerce’s Workforce Freedom Initiative. The chamber doggedly fought the board under former President Barack Obama.
Labor advocates scoff at the notion that the board overreached under Obama. “The idea that you cannot look at the developments in the workplace and how it has changed over the past 80 years when it comes to interpreting the law is absurd,” said Joshua Parkhurst, a New York labor rights attorney.
Nevertheless, it will be a while before Miscimarra can assert himself. Although chairman, he is still in the minority because the other two current board members, Mark Pearce and Lauren McFerran, are Democrats. He will have to wait until Trump nominates and the Senate confirms two Republicans to fill the remaining open seats.
Miscimarra was a lawyer in private practice in Chicago when he was picked by Obama in 2013 to fill an open Republican seat on the Democratic-majority board. At the time, the board, long a little-known federal backwater, was just beginning to assert itself as a major force by rewriting workplace law.
In dissents that were often far longer than the majority’s rulings, Miscimarra regularly argued the board was exceeding the authority Congress had given it. The board’s other Republican, Harry Johnson, whose term expired in 2015, usually joined him.
That stance was perhaps most clear in a 2014 case called Murphy Oil. The board majority said the National Labor Relations Act gave it the right to invalidate class-action waivers that employers required workers to sign. The labor act couldn’t do that, Miscimarra countered, because it was written before class actions existed.
“It defies reason to suggest that Congress, in 1935, incorporated into the NLRA a guarantee that non-NLRA claims will be afforded ‘class’ treatment when there was no uniformity then — nor is there now — regarding what ‘class’ treatment even means,” he said.
He made a similar argument in 2015’s Browning Ferris, one of the board’s most notable rulings. The case involved when one business became a “joint employer” of another company’s workers and therefore legally responsible for any violations of workplace laws. Previously, a business had to have “direct control” over the workers to be considered a joint employer, but the labor board expanded that to the much vaguer “indirect control.” Miscimarra was one of the controversial ruling’s biggest critics.
“No bargaining table is big enough to seat all of the entities that will be potential joint employers under the majority’s new standards. In this regard, we believe the majority’s new test impermissibly exceeds our statutory authority,” he wrote.
Steve Bernstein, a management-side attorney with the Tampa law firm Fisher & Phillips, points to Miscimarra’s dissents in the various cases the labor board has taken up about employer policies toward social media such as Facebook as another area where Miscimarra has pointed out that the Labor Relations Act is simply silent.
“It is increasingly hard for the NLRB to argue that the people who wrote the law would have done the same thing that the board is doing right now,” Bernstein said.
Like Scalia’s, some of Miscimarra’s dissents could be quite scathing. When in a 2016 joint employer case involving McDonald’s Corp. the board denied the company the right to subpoena certain documents for its defense, Miscimarra compared it to a person being denied the opportunity to say they killed in self-defense.
“If a person accused of murder maintains he was acting in self-defense, evidence that he was being attacked is obviously relevant,” he wrote.
After the board instituted a new rule speeding up the scheduling of workplace elections, a change that unions applauded, Miscimarra slammed the majority’s “preoccupation with speed” in a February case called European Imports. The sped-up process “extinguishes the employees’ right to have a reasonable period of time to become familiar with election issues,” he said.
All those comments point to Miscimarra pulling the board back from its current activist period into something closer to status quo that prevailed prior to Obama, observers say.
Miscimarra is also apparently a sci-fi nerd. In a 2016 case called American Baptist Homes of the West he said the majority’s opinion was wrong because the law “does not require parties to maintain Spock-like objectivity.” In a footnote he 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…. However, even Spock, who had a human mother, experienced a ‘strained and often turbulent’ relationship with his Vulcan father.”
