Miscimarra offers insider’s view of NLRB

September 2015

by Susan Schoenfeld, JD
Sr. Legal Editor, HR
(September 2015) Getting a Senate committee to give unanimous approval on anything is rare these days. So when President Barack Obama nominated Philip A. Miscimarra to the National Labor Relations Board (NLRB) in 2013 and the ruling Senate committee unanimously confirmed his nomination, political insiders took notice.

Miscimarra, whose four-year term on the NLRB expires in December 2017, spoke at a recent regional meeting of BLR’s Employers Counsel Network (ECN) in Baltimore, offering a glimpse into what the Board looks like from the inside.

According to Miscimarra, his early days on the NLRB were “surreal.” Making the transition from a private law practice at the firm Morgan, Lewis & Bockius in Chicago to the Board wasn’t easy—especially when just prior to his arrival, the U.S. Court of Appeals for the D.C. Circuit ruled that three other earlier appointments to the Board made by President Obama were unconstitutional. The court’s decision in Noel Canning v. NLRB, 705 F.3d 490 (D.C. Cir. 2013), affd. 134 S. Ct. 2550 (U.S. 2014), that the three “recess” appointments were improperly made without the advice and consent of Congress called all of the NLRB’s decisions made by that panel in the intervening year into question.

Inside the NLRB today

In the two years since Miscimarra’s appointment, much has settled down. The NLRB was, until recently, back to a full roster of five members: Democrats Mark Pearce, Lauren McFerran, and Chairman Kent Hirozawa and Republicans Miscimarra and (now former Board member) Harry Johnson. And while the NLRB has had its fair share of controversial cases, Miscimarra says the dynamic within the Board is “principled,” and the deliberative process includes an effort to get to a consensus “more often than most people think.”

Unlike other judicial bodies that can pick and choose their own cases, the control over which cases reach the Board falls squarely in the hands of NLRB General Counsel Dick Griffin. So, according to Miscimarra, hearing cases on the Board is like “taking free throws in basketball—you just take each one as it comes.”

Miscimarra says he doesn’t think of serving on the NLRB as work. He sees his job as a privilege and sees the Board as a “hard-working agency.” He often feels humbled to work with “very smart, experienced people who see things differently than [I] do.” His role as part of the Board’s political minority got a little more lonely this year, as fellow Republican Board member Johnson’s term ended on August 27. A replacement for Johnson is currently being sought.

For attorneys bringing cases to the NLRB, Miscimarra suggests looking at the “long game.” Currently, the “lag time” on a case coming before the Board is about three to five years. So Miscimarra suggests that litigators think of the case, facts, and arguments in that time frame and attempt to anticipate where the Board will stand three to five years in the future. Since presidential elections control the NLRB’s makeup and the eventual outcome of a case, this task is particularly difficult, says Miscimarra.

Changes in workplace investigations

Miscimarra says that since his appointment to the NLRB, the Board’s decisions have brought about some key changes, most notably asignificant complication” of employers’ investigation obligations. These changes were brought about by a recent trilogy of investigation cases:

  • Fresh & Easy Neighborhood Market, 361 NLRB No. 8 (July 2014), in which the Board held that a single employee collecting coworkers’ witness statements for her sexual harassment claim was engaging in protected concerted activity for mutual aid or protection.
  • Banner Estrella Medical Center, 362 NLRB No. 137 (June 2015), in which the Board held that an employer may not restrict employee discussions regarding an ongoing disciplinary investigation without a legitimate and substantial business justification that outweighs the employees’ rights (e.g., that evidence is in danger of being destroyed, testimony is in danger of being fabricated, and there is a need to prevent a cover-up).
  • Piedmont Gardens, 362 NLRB No. 139 (June 2015), holding that an employer’s policy of ensuring the confidentiality of witnesses was, by itself, insufficient to establish its confidentiality interest, that there must be a factual basis to support a concern about witness harassment and intimidation, and that the availability of the requested information from other sources did not excuse the employer’s obligation to provide such information.

Miscimarra’s dissent in all three cases is rooted in the belief that all employees benefit from protected workplace investigations—especially harassment investigations. This is so, he says, because the employer and its investigation are at the forefront of harassment prevention. He believes the NLRB’s decisions in these cases may result in a witness being reluctant to give information if he or she knows that the statement could be disclosed and that the employer is unable to ensure confidentiality.

Finally, Miscimarra says that he believes commonsense balancing is necessary in the NLRB’s decisions. Rather than only considering the potential impact of requirements or restrictions on rights afforded by the National Labor Relations Act (NLRA), his desire would be for the Board to balance that impact along with legitimate factors that may be warranted by laws or considerations unrelated to the NLRA.

Schoenfeld has practiced in the area of employment litigation and counseling, covering topics such as disability discrimination, wrongful discharge, and  sexual harassment. She provided training and counseling to corporate clients and litigated cases before the U.S. Court of Appeals, state court, and at the U.S. Department of Labor.