NLRB chair Miscimarra likely to turn back pro-union measures

Dive Brief:

National Labor Relations Board Chair Philip Miscimarra is expected to follow the conservative Justice Antonin Scalia’s straight text interpretation of the law in ruling on board issues, the Washington Examiner reports. Miscimarra’s conservative stance will likely undo many pro-labor measures issued under the Obama administration.
Labor advocates criticize Miscimarra’s voting record as a board member, which often called the NLRB’s pro-labor decisions a form of over-reach, notes the Examiner. His opponents say his strict reading of decades-old labor laws is shortsighted.
In one of the NLRB’s most recent and notable cases, Browning-Ferris, Miscimarra strongly opposed the board’s majority ruling, which expanded the definition of “joint employer” to include “indirect” control over another entity’s employees.

Dive Insight:

Miscimarra’s board rulings have been consistent. He hasn’t wavered from his original labor stands and therefore is unlikely to do so as board chair.

A key roll-back under Miscimarra’s chairmanship could be the board’s expanded definition of “joint employer.” Business groups and some of the courts are pushing back on the rule. Miscimarra has maintained that the term “indirect” is too vague for a reasonable interpretation of the law.

If or until the ruling changes, employers can take the “economic reality” test, which helped the Jack in the Box fast-food chain win its case. The test determines whether the employer 1) has hire and fire power over workers; 2) supervises and controls workers’ schedules; 3) decides pay rates and methods; and 4) keeps employment records. Employers that meet the requirements could be liable.

Another key issue is the expansion of "protected speech" regulation, most notably in the realm of social media. A recent case received a lot of attention after the employee at question was reinstated after posting obscenities about their manager on Facebook because their post also included talk of an upcoming union election. Miscimarra could begin a rollback of momentum in that space.