Ex-Labor Board Chair Levels Subtle Criticism at NLRB

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By Hassan A. Kanu

Conservatives and the business community want the federal labor board to walk a tightrope: pull back as much of the Obama administrations “overreaching” policies and regulations as possible, without stepping on lawmakers’ turf.

Philip Miscimarra, the former chairman of the federal labor board, leveled some criticisms at the agency he headed just two months ago during a panel at the Conservative Political Action Conference Feb. 22.

“I think that agencies like the National Labor Relations Board do important things, and I have respect for hardworking career professionals and other employees at the NLRB,” Miscimarra said during the panel. “But I will say this: federal regulators and federal agencies are not Congress.”

Miscimarra served as chairman of the National Labor Relations Board for most of 2017 until his term ended in December. He made thinly veiled criticisms of the way the agency has operated in recent years, presumably when he wasn’t at the helm.

The former chairman’s complaints echo conservatives who’ve accused the labor board of activist policy-making during President Barack Obama’s administration, when the agency established some new rights and extended others for employees. Peter Robb, President Donald Trump’s general counsel appointee, directed the agency’s career staffers to consult his offices on any cases involving precedent set on workers’ rights in “the last eight years” shortly after he was confirmed.

Labor law policy “does not originate with NLRB members” and should instead be created by Congress, Miscimarra said.

Miscimarra issued a spate of major decisions in a weeks long span shortly before the end of his term. Worker advocates characterized the several moves as a significant policy shift, but Miscimarra and other conservatives described them as a sort of restoration of the status quo that existed before the Obama era.

The National Labor Relations Act is a broadly written statute with provisions to ensure employers’ stability in the workplace and others granting workers the right to engage in “concerted activities” for “mutual aid or protection.” The labor board’s job, generally, is to apply the law. That often means answering questions the statute leaves open, like what sort of activity is “concerted” or what constitutes “mutual aid.”

Miscimarra spoke on a panel titled Trumponomics vs. Obamanomics at CPAC Feb. 22.

Statements Supporting Robb?

Some of Miscimarra’s comments were prefaced with statements that seem to suggest he supports certain proposals by Robb to slim down the agency, although he never directly stated an opinion or proposal regarding the NLRB’s career staffers.

“During my tenure there were very hard working people in the agency, but I frequently said parties cannot afford to win an NLRB case,” Miscimarra said.

“Process-related costs” at the agency are so great that they “impose a significant toll on parties even if they end up prevailing,” Miscimarra, who has returned to management-side practice at law firm Morgan Lewis, said.

Most of the CPAC speakers, including Max Pappas, Google’s head of Republican political messaging, criticized Obama’s regulatory approach to labor and the economy and touted Trump’s emphasis on deregulation. Miscimarra took a comparatively muted tone.

There isn’t much academic consensus on the extent to which regulation affects the economy, but the view that agency regulations and rulings inhibit business growth is common among Trump’s Cabinet and other appointees.

Emphasis on Clarity

Miscimarra also lamented what he said was a lack of clarity in the decisions stemming from the Obama-era board.

“One of my greatest disappointments—which I expressed in a significant number of separate opinions—was so many complicated rulings by our agency which made it nearly impossible for parties to figure out the difference between what the law required and what the law prohibited,” Miscimarra said.

He cited a decision known as Boeing Co., which was issued just before the end of his term, as an example of clear guidance for businesses, unions, and workers.

The case laid out a new framework for reviewing employers’ policies, rules, and handbook provisions to ensure they don’t unlawfully infringe on workers’ rights to act collectively.

The framework makes it easier “for parties in future cases to figure out what requirements were lawful to maintain, what requirements were unlawful to maintain and what cases in the middle might require closer examination,” Miscimarra said.

The former board chairman in his closing remarks urged employers to continue compliance efforts.

“The best experience with an agency is not having a need to submit to agency proceedings in the first place,” Miscimarra said.

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