Outgoing labor board chairman leaves with gun blazing

After lying dormant for almost one year, the agency in charge of interpreting the country’s main labor law erupted in December with four blockbuster decisions, three that reversed opinions made during Barack Obama’s presidency by a Democrat-controlled board.

Announced over a 24-hour span, the decisions make it harder to hold many corporations legally liable, ease the process for employers at unionized workplaces to write company rules, and raise the bar for some workers to unionize in the first place.

The rulings — all passed 3-2 on party lines — also, perhaps, show how a single board member’s plan of attack changed policing of the American workplace.

The National Labor Relations Board turned Republican in September when the U.S. Senate confirmed GOP lawyers William J. Emanuel, a shareholder in Littler Mendelson PC’s Los Angeles office, and Marvin E. Kaplan, whom President Donald J. Trump named after Obama-appointed Democrats’ terms expired.

The December blizzard of employer-friendly rulings, then, was somewhat predictable. Almost since it was created in the 1930s to interpret the National Labor Relations Act, the five-member board has been a partisan political body.

“We now seem to have settled into a pattern in which Republican-majority boards overrule any decisions on issues that are highly salient to the Chamber of Commerce and business groups,” stated Catherine Fiske, a labor professor at UC Berkeley School of Law. “And Democratic-majority boards then overrule those decisions on issues salient to labor, and back again.”

Maybe surprising, though, was the Trump board’s abruptness. The reversals, lawyers said, bore the fingerprints of Republican Philip A. Miscimarra, who stepped down as board chairman on Dec. 16.

Robert F. Millman, management-side lawyer at Littler Mendelson PC, hypothesized that Miscimarra’s law clerks combed disputes to find cases with facts similar to precedents the outgoing chairman sought to overturn.

Miscimarra and his clerks, Millman theorized, wrote the lengthy, unsigned decisions, on matters including liability of a parent company’s subsidiary.

“You can see that it was a politically inspired, ideological decision,” Millman said of the board’s ruling on dual employer liability. “The majority spelled it out in the first four or five pages of the decision what they wanted to accomplish.”

“The way these decisions were written,” said management lawyer Mark S. Ross, special counsel at Sheppard, Mullin, Richter & Hampton LLP, “Miscimarra wrote every single one of them.”

An erstwhile partner at Morgan, Lewis & Bockius LLP, Miscimarra’s term was set to expire. But presidents may appoint board members to a second, five-year term, and Trump will now have to nominate a fresh face in order to preserve the five-member board’s Republican majority.

“It is a mystery why he stepped down,” Millman said.

Miscimarra has not stated his next move, and attempts to reach him through the labor board were not successful.

“They are back to a 2-2 stalemate,” the management lawyer added. “It will return the board to a period of inaction.”

Added David A. Rosenfeld, a union lawyer at Weinberg Roger & Rosenfeld APC, “Nobody knows why he didn’t re-up, but he got his major issues resolved.”

Chief among them was Hy-Brand Industrial Contractors Ltd., which undid the Obama board’s 2015 decision in Browning-Ferris finding an employer is accountable toward an employee either if they exert control over that worker, or merely have the power to exert control.

Browning-Ferris was supposed to push hospitality and restaurant corporations to revisit relationships with franchisees, and companies to reassess their chain of command with subcontractors and staffing agencies. But Browning-Ferris had no tangible impact, lawyers noted, because it was still before the D.C. Circuit Court of Appeals when Hy-Brand Industrial Contractors Ltd. came down on Dec. 14.

Also on Dec. 14, the court overturned a 2011 Obama administration precedent stating when workplace “micro units” can form their own unions. The 2011 ruling allowed, for example, a sub-class of 100 nurses with similar duties to organize in a 3,000-employee hospital.

But PCC Structurals moved the burden from employer to employee to show when a fragmented organizing strategy is appropriate.

The two big decisions issued Dec. 15 concerned an employer’s ability to write workplace rules.

In Raytheon Network Centric System, the board reversed a 2016 decision.

The majority found employment policies not explicitly dealt with in a collective bargaining agreement “do not constitute a change if they are similar in kind and degree with an established past practice consisting of comparable unilateral actions.”

In another opinion, the Republican majority gave employers ammunition to contest charges of an illegal workplace policy.

Obama administration decisions strengthened a prior board ruling that any workplace edict, from dress code to prohibiting certain discussion topics, could be deemed illegal if “reasonably” found to prohibit concerted worker activity.

The “reasonably” standard was the bane of some management lawyers’ existence. “A day didn’t go by where I didn’t see a case saying some workplace policy was illegal,” Ross said.

Plaintiffs’ lawyer Rosenfeld acknowledged that his side “pretty constantly” file complaints regarding workplace rules.

The new standard, though, weighs employees’ rights with “legitimate justifications” employers proffer. It is, Ross said, a key improvement for employers.