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President Names Miscimarra as Acting Chair of the National Labor Relations Board

On January 26, President Donald Trump announced the designation of current National Labor Relations Board Member Philip Miscimarra as the Board's Acting Chairman, replacing former Board Chairman Mark Gaston Pearce. Miscimarra is the lone Republican on the Board along with Democrats Pearce and Lauren McFerran. Currently there are two vacancies on the Board, which will be filled by Republican nominees to reconstitute a Board majority from the president's political party, as required by the National Labor Relations Act.

Miscimarra was first appointed to a seat on the Board by former President Barack Obama. After being unanimously reported out of the Senate Committee on Health , Education, Labor and Pensions (HELP) and confirmed by the Senate, he was sworn in on August 7, 2013 for a term that expires on December 16, 2017.

Immediately prior to his appointment to the NLRB, Miscimarra was a labor and employment lawyer in private practice in Chicago and was a Senior Fellow in the Center for Human Resources of the University of Pennsylvania's Wharton Business School.

During his tenure on the Board, Miscimarra is noted for writing numerous dissenting opinions from the pro-union decisions of the Board Majority, which had reversed decades of legal precedents. A number of his dissents have been adopted by federal circuit courts of appeals.

Among his most recent and noteworthy dissents are:

  • Browning-Ferris Industries of California, Inc. d/b/a BFI Newby Island Recyclery, 362 NLRB No. 186 (August 27, 2015);

  • URS Federal Services, Inc., 365 NLRB No. 1 (December 8, 2016);

  • United States Postal Service, 364 NLRB No. 116 (August 27, 2016);

  • King Soopers, Inc., 364 NLRB No. 93 (August 24, 2016);

  • The Trustees of Columbia University in the City of New York and Graduate Workers of Columbia–GWC, UAW, 364 NLRB No. 90 (August 23, 2016);

  • Miller & Anderson, Inc., 364 NLRB No. 39 (July 11, 2016);

  • American Baptist Homes of the West, 364 NLRB No. 13 (May 31, 2016);

  • G4S Government Solutions, Inc., 363 NLRB No. 113 (February 10, 2016); and

  • Guardsmark, LLC, 363 NLRB No. 103 (Jan. 29, 2016).

Once two new Board Members are confirmed, the new Republican majority will undertake the arduous, time-consuming task of reconsidering the prior Board's reversals of precedent once new cases rise up the pipeline to the Board. The Board is precluded from issuing advisory opinions and therefore must await "live" cases to be brought before it for decision.

In a statement, Miscimarra commented:

“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."

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About this Author

Harold Coxson, Ogletree Deakins Law Firm, Labor and Employment Attorney

Hal Coxson is a nationally recognized lawyer with over 35 years experience in all aspects of labor and employment law in Washington, DC. He is highly respected for his experience and expertise in government relations and as an advocate on behalf of business clients before Congress, the Executive Branch and independent federal regulatory agencies. He chairs the Firm’s Government Relations Practice Group and is a Principal in Ogletree Governmental Affairs, Inc., the Firm’s wholly-owned subsidiary.

Mr. Coxson concentrates on traditional labor law...