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Glimpse of Future In NLRB Dissent

A dissent in a recent National Labor Relations Board decision may offer a view of where the board will head when new members take control.

Board member Philip A. Miscimarra was named NLRB Acting Chairman on Jan. 23 by President Trump, who also can nominate two more members to fill vacant seats on five-member body. In addition to Miscimarra, two more Republicans would create a 3-2 Republican majority.

Trump has yet to name those nominees, who will need Senate approval before taking their seats.

A frequent dissenter to many of the most controversial NLRB decisions during the Obama era board, Miscimarra is characterized as being outspoken even when he is outnumbered.

For example, the Obama era board has restricted the language in employee handbooks as a way to intrude on the practices of even nonunion employers. In his dissent to a recent employee handbook case, Miscimarra undercut this tactic.

Currently, the board holds that an employer’s rule or policy is invalid if it can be construed as illegally prohibiting employees from discussing terms and conditions of their employment.

Miscimarra argued that this should be replaced by a policy that balances an employer’s legitimate justifications for its rule or policy and its potential effect on protected activities.

He also took aim at an earlier, wide-ranging board decision holding that when employers grant employees access to their email systems for work purposes, they then have a right to use those systems to engage in protected communications, even when they are not working.

This “illustrates a stark contrast between the board’s current standards and chairman’s views,” notes attorney Masanari Katsumi of the Masuda Funai Eifert & Mitchell law firm. “One month into his new role, the chairman’s dissent is certainly revealing as to his very different vision of the direction that the NLRB should head in the future.”

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