Insight from the Top: Former US National Labor Relations Board Chairman Shares Lessons Learned

February 22, 2018

Philip A. Miscimarra, who most recently served as chairman of the US National Labor Relations Board, rejoined Morgan Lewis February 20 as head of the NLRB special appeals practice; here he shares insights on the role of the NLRB in labor/management relations and more.

As the former chairman of the US National Labor Relations Board (NLRB), returning Morgan Lewis partner Philip A. Miscimarra brings a unique perspective on the pressures employers face in navigating changes in the economy, employer-employee relationships, and labor laws. He will lead the firm’s NLRB special appeals practice, which assists clients with appeals to the board and its general counsel.

Phil was appointed to the NLRB by President Barack Obama in 2013 and named NLRB chairman by President Donald Trump in 2017. In the four and a half years he served on the NLRB, the board issued many significant decisions involving work rules, workplace investigations, union organizing, the employee status of university graduate students, and other issues.

Here Phil shares some of his insights from his years of government service and discusses what brought him back to Morgan Lewis.

Why did you rejoin Morgan Lewis?

I am happy to be back at Morgan Lewis, where I spent eight years before my time at the NLRB. The firm is incredibly well positioned to assist clients with workplace and business issues, bringing together experienced teams that can handle every type of issue imaginable, including employment and labor matters, corporate transactions, other business law issues, intellectual property protection, and commercial litigation, to name just a few.

And I’m continuing a longstanding tradition of Morgan Lewis partners serving on the NLRB, joining Harry Johnson and Chuck Cohen who were both also on the board. I think that the combination of multiple former NLRB board members at the same firm provides unique perspectives and insights that translate into substantial assistance to clients.

What will your practice focus on?

I will advise employers on a wide range of labor and employment issues, focusing on labor/management relations matters and employment litigation, as well as helping major business groups address important employment policy issues.

What is the NLRB special appeals practice at Morgan Lewis?

Drawing on the skillset brought to the firm by three former NLRB members and a large number of other extremely talented labor lawyers, we are able to assists clients with high-stakes issues based on our experience regarding what works and what doesn’t, and we can provide unique insights regarding labor law compliance as well as NLRB litigation.

Morgan Lewis is able to handle all aspects of cases and exceptions appealed to the board, to address matters that warrant consideration by the board’s general counsel, and to collaborate with and provide strategic guidance to existing counsel involved in NLRB litigation. The firm also has experience working with all other branches of the agency, including the board’s regions and the Division of Advice, which may facilitate the effective resolution of complex matters. Our NLRB special appeals practice is part of our larger traditional labor team, which has handled all types of administrative trials, hearings, and other proceedings involving NLRB case law.

What are some of the biggest issues employers face right now?

Employers operate in an economy that has never before seen the rapid rate of change—and level of competition—that currently exist. Agencies and courts have been struggling to keep up with changes affecting the employer-employee relationship.

Although it is challenging for the board and the courts to address new or different workplace challenges, it is also important to recognize that many developments are not unprecedented. For example, although issues involving independent contractors and “employer” status are often considered novel concepts that emerged with what is currently called the “gig economy,” these same issues have received significant attention in Congress and the courts going back 70 years. In many instances, based on careful review of existing case law including legislative history, substantial guidance may be available regarding matters that are characterized as novel.

What guides your approach to labor/management relations?

There are all kinds of labor/management relationships, and it would be a mistake to advocate any one-size-fits-all solution for labor/management challenges. However, many labor/management success stories involve three basic principles:

  1. It is nearly always better to arrive at an agreement if an agreement can be reached on reasonable terms.
  2. When a reasonable agreement can’t be reached, it is important to maintain a high degree of credibility and take action in a principled manner, which becomes even more critical when an agency like the NLRB gets involved.
  3. Success at the bargaining table and in litigation often turns on having experienced legal advice when developing a strategy and before taking significant action.

What made the biggest impression on you during your NLRB service?

At the NLRB, I was very fortunate to work with a large number of dedicated lawyers and other professionals who were extremely talented and committed to the NLRB’s role in enforcing federal labor law. And the NLRB continues to have a substantial impact on potentially all kinds of employers, employees, and unions, across an incredible array of different jobs and workplaces throughout the United States.