Labor Board Chairman Wants Decisions Made as His Term Winds Down

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By Chris Opfer

National Labor Relations Board Chairman Philip Miscimarra (R) will have his hands full in the three months left in his term.

“For sure, we are going to be very, very busy as an agency,” Miscimarra told a group of lawyers Sept. 14 at an event hosted by Epstein Becker & Green. “I’m going to do everything I can to try to increase our output between now and the end of my term.”

Any cases he participated in that aren’t decided before he leaves Dec. 16 would have to be restarted, Miscimarra said. That could mean long delays for labor unions, employers, and others with business before the board.

“Every time we have a board member’s end of term, it becomes very important to issue as many decisions as possible in cases that member has participated in,” Miscimarra said. “For cases, for example, where I’ve voted and a decision has not been issued, a case can be delayed for two or three or four years because it needs to be considered by a new panel.”

The board currently has four members: two Republicans and two Democrats. It often uses a three-member panel to decide cases but may ask all five members to weigh in on novel or otherwise compelling questions.

President Donald Trump earlier this year nominated management attorney William Emanuel (R) to fill the board’s fifth seat. The Senate hasn’t voted on Emanuel’s nomination. Marvin Kaplan (R) was sworn in to a spot on the board last month.

What’s Next?

Miscimarra acknowledged that Trump asked him to stay on for another five-year stint on the board. Although he was tempted to stay, he said he chose to leave at the end of the term because he has three sons who will soon be in college.

“I indicated to President Trump about a month ago that I was unfortunately, because of my personal circumstances, unable to continue serving on the board after my terms runs out,” Miscimarra said. “I don’t have any idea what I am going to do because I have indicated publicly that I will not give any consideration to what I may do next until I finish the job I currently have.”

Miscimarra also noted that Trump has the chance to make his mark on the board soon by filling Miscimarra’s seat and the NLRB general counsel position. Vermont management lawyer Peter Robb is said to be in line to take over that role when Richard Griffin’s (D) term expires at the end of October.

The board will eventually have the opportunity to reconsider a wide range of Obama administration decisions, including those expanding joint employer liability and interpreting limits on employee handbooks and workplace policies.

To contact the reporter on this story: Chris Opfer in New York at copfer@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com

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