Philip A. Miscimarra

Phil is one of the most prominent labor and employment lawyers in the United States, based on his experience as a litigator, strategic advisor, and policymaker, both in private practice and as former Chairman and Board Member on the NLRB.  He has participated in many important labor and employment law cases, with many decisions reflecting his majority, dissenting and concurring opinions at the NLRB.

Prominent NLRB cases in which Phil participated, either in the majority or in separate dissenting or concurring opinions, include the following:

• Boeing Co., 365 NLRB No. 154 (2017) (adopting a new standard governing the legality of employer work rules, policies, and employee handbook provisions)
• PCC Structurals, Inc., 365 NLRB No. 160 (2017) (reinstating the board’s traditional rules governing appropriate bargaining units, and overruling the prior Specialty Healthcare standard)
• Raytheon Network Centric Systems, 365 NLRB No. 161 (2017) (reinstating the board’s traditional standard governing the duty to bargain over changes, and overruling the board’s prior DuPont decision)
• UPMC, 365 NLRB No. 153 (2017) (upholding settlements found to be reasonable even though they may fail to provide full relief, and overruling the board’s prior Postal Service decision)
• Request for information, 83 Fed. Reg. 58783 (Dec. 14, 2017) (seeking information regarding retention, modification, or rescission of 2014 NLRB changes to NLRB union representation procedures)
• Murphy Oil Co., 361 NLRB No. 72 (2014) (dissenting from the board’s finding that class action waiver agreements violate US labor law; Phil’s dissenting views—and the dissenting views of former NLRB Member Harry Johnson—were validated by the US Supreme Court in Epic Systems Corp. v. Lewis, No. 16-285 (May 21, 2018), where the Court for the same reasons held that class action waiver agreements are lawful under the National Labor Relations Act
• William Beaumont Hospital, 363 NLRB No. 162 (2016) (dissenting views set forth a new standard governing work rules and employment policies, which were adopted by the board majority in Boeing referenced above)
• Macy’s, Inc., 361 NLRB No. 4 (2014), reversed and remanded, 851 F.3d 35 (D.C. Cir. 2017) (dissenting views advocated overruling board’s prior Specialty Healthcare decision and returning to board’s traditional standards governing appropriate bargaining units, which were adopted by the board majority in PCC Structurals referenced above)
• CNN America, Inc., 361 NLRB No. 47 (2014), reversed and remanded, 865 F.3d 740 (D.C. Cir. 2017) (dissenting views regarding antiunion discrimination and successor employer status; Phil’s dissenting views were cited with approval by Circuit Judge Brett Kavanaugh, who more recently has been nominated to the US Supreme Court)
• Browning-Ferris Industries, 362 NLRB No. 186 (2015) (dissenting from board majority’s expansion of joint employer status)
• Banner Health System, 362 NLRB No. 137 (2015), (dissenting from board majority decision regarding requests for confidentiality during workplace investigations)
• Total Security Management, 364 NLRB No. 106 (2016) (dissenting from board majority’s adoption of unique duty-to-bargain requirements applicable to employee discipline)
• Purple Communications, Inc., 361 NLRB No. 126 (2014) (dissenting from board majority’s creation of statutory right for employees to use employer email systems for non-business purposes associated with protected concerted activity)
• Columbia University, 364 NLRB No. 90 (2016) (dissenting from board majority’s finding that university student assistants are employees for purposes of collective bargaining under NLRA)
• Babcock & Wilcox Construction Co., 361 NLRB No. 132 (2014) (dissenting from board’s adoption of new standard disfavoring NLRB deferral to arbitration awards in cases alleging unlawful antiunion discrimination)
• Wal-Mart Stores, Inc., 364 NLRB No. 118 (2016) (dissenting from Board finding that in-store protest and occupying customer service counter constituted protected activity)
• Northwestern University, 362 NLRB No. 167 (2015) (declining to exercise jurisdiction over private university football scholarship student-athletes)
• Pacific Lutheran University, 361 NLRB No. 157 (2014) (dissenting from new standard regarding NLRB’s jurisdiction over religious institutions and joining in refinement of standard governing when faculty members are non-managerial employees who can participate in collective bargaining)
• American Baptist Homes of the West d/b/a Piedmont Gardens, 362 NLRB No. 139 (2015) (dissenting from required disclosure of confidential witness statements obtained during workplace investigations)
• Fresh & Easy Neighborhood Markets, 361 NLRB No. 12 (2014) (dissenting from finding that single employee’s conduct invoking statutory right automatically constitutes protected concerted activity under NLRA)
• Advance Life Systems, 364 NLRB No. 117 (2016), vacated in part, No. 16-1405 (D.C. Cir. 2018) (dissenting from finding that the discontinuation of discretionary, irregular wage increases constituted unlawful antiunion discrimination under NLRB; dissenting views regarding this issue were adopted by DC Circuit, which reversed NLRB majority opinion)
• American Baptist Homes of the West d/b/a Piedmont Gardens, 364 NLRB No. 13 (2016) (dissenting from new standard regarding lockouts alleged to constitute unlawful antiunion discrimination under NLRA)

Prominent cases in which Phil represented clients in private practice include the following:

• M&G Polymers USA, LLC v. Tackett, 135 S. Ct. 926 (2015), reversing and remanding 733 F.3d 589 (6th Cir. 2013), affirming 853 F. Supp. 2d 697 (S.D. Ohio 2012), on remand from 561 F.3d 478 (6th Cir. 2009), reversing 523 F. Supp. 2d 684 (S.D. Ohio 2007) (lead counsel from 2007 to 2013, representing M&G Polymers USA, LLC in the district court and court of appeals)
• Chamber of Commerce of the United States, Coalition for a Democratic Workplace et al. v. NLRB, 118 F. Supp. 3d 171 (D. D.C. 2015) (litigation against NLRB resulting in court decision invalidating 2011 NLRB regulations changing union representation election procedures)
• Chamber of Commerce of the United States v. NLRB, 721 F.3d 152 (4th Cir. 2013) (representing members of Congress in litigation against NLRB resulting in court of appeals decision overturning 2011 NLRB regulations requiring employers throughout the United States to post notices regarding unions and collective bargaining rights)
• National Association of Manufacturers v. NLRB, 717 F.3d 947 (D.C. Cir. 2012) (representing members of Congress in litigation against NLRB resulting in court of appeals decision overturning 2011 NLRB regulations requiring employers throughout the United States to post notices regarding unions and collective bargaining rights)