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Articles by Philip Miscimarra
Unions, Politics, and the Future of Labor Relations: Key Themes
NLRB leadership changes and court challenges could reshape federal labor policy and the durability of Board decisions. Some labor proposals are drawing support across traditional party lines, while state and local initiatives may add complexity for multistate employers. The 2026 midterm elections could affect congressional oversight, appropriations, NLRB nominations, and the broader labor policy agenda.
Unions, Politics, and the Future of Labor Relations: Key Themes
Insight NLRB leadership changes and court challenges could reshape federal labor policy and the durability of Board decisions. Some labor proposals are drawing support across traditional party lines, while state and local initiatives may add complexity for multistate employers. The 2026 midterm elections could affect congressional oversight, appropriations, NLRB nominations, and the broader labor policy agenda.
Labor Board Decisions on Elections, Work Rules Ripe for GOP Flip
The National Labor Relations Board’s landmark decision to discourage unfair labor practices during union elections tops the list of Biden-era precedents that management-side labor lawyers want the board’s newly completed Republican majority to overturn first. While employer counsel most frequently cited Cemex Construction Materials Pacific LLC, they also pointed to a host of other decisions they want the NLRB to focus on in the near term.
Labor Board Decisions on Elections, Work Rules Ripe for GOP Flip, Bloomberg Law
Partner Philip Miscimarra was quoted by Bloomberg Law in an article examining Biden-era National Labor Relations Board (NLRB) precedents that the board’s new Republican majority may revisit. Phil, who served as NLRB chair, noted that the board could address numerous cases over the next 12 to 18 months with consequences extending beyond employers.
Sixth Circuit Rejects the NLRB's Cemex Bargaining Order Standard
The US Court of Appeals for the Sixth Circuit held that the National Labor Relations Board (NLRB or the Board) exceeded its adjudicatory authority by issuing its Cemex decision—which dramatically changes the rules governing union recognition—without...
Sixth Circuit Rejects the NLRB’s Cemex Bargaining Order Standard
The US Court of Appeals for the Sixth Circuit held that the National Labor Relations Board (NLRB or the Board) exceeded its adjudicatory authority by issuing its Cemex decision—which dramatically changes the rules governing union recognition—without having notice-and-comment rulemaking. This decision has significant implications for employers in union organizing campaigns and, more broadly, the NLRB’s authority to implement policy and precedent changes through case adjudication.
When Congress Investigates, Prepare and Coordinate Your Teams
Congressional investigations often aren't well-understood outside Washington, D.C., but can have far-reaching effects for individuals, companies, and other organizations that wind up on the receiving end of a congressional subpoena or other request for information. If skillfully handled, a congressional investigation may be weathered, with no lasting ill effects. If mismanaged, however, an investigation can be disastrous and produce harms ranging from reputational damage to legal jeopardy.
When Congress Investigates, Prepare and Coordinate Your Teams, Bloomberg Law
Partners Amanda Robinson, David Plotinsky, and Philip Miscimarra wrote an article for Bloomberg Law about the legal jeopardy and reputational damage that congressional investigations can inflict when responses are mismanaged.
New NLRB Union Rules Require Proactive Employer Response
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New NLRB Union Rules Require Proactive Employer Response
ADVERTISEMENT Don't want ads? Subscribe or login now. By David Broderdorf, Philip Miscimarra and John Ring (September 5, 2023, 3:02 PM EDT) -- On Aug. 25, the National Labor Relations Board drastically changed the process for most private-sector employee unions seeking recognition in the United States.... A Law360 subscription puts you at the center of fast-moving legal issues, trends and developments so you can act with speed and confidence.
New NLRB Rules Favor Mandatory Union Recognition & Limit Employee Voting in Secret-Ballot Elections | JD Supra
The National Labor Relations Board drastically changed the process for unions seeking recognition of most private sector employees in the United States. Abandoning 50 years of established law, in Cemex Construction Materials Pacific (372 NLRB No. 130), the NLRB created new rules that will impose two types of mandatory union recognition bypassing or overriding the results of secret-ballot employee voting in NLRB-conducted elections.
New NLRB Rules Favor Mandatory Union Recognition & Limit Employee Voting in Secret-Ballot Elections
The National Labor Relations Board drastically changed the process for unions seeking recognition of most private sector employees in the United States. Abandoning 50 years of established law, in Cemex Construction Materials Pacific (372 NLRB No. 130), the NLRB created new rules that will impose two types of mandatory union recognition bypassing or overriding the results of secret-ballot employee voting in NLRB-conducted elections.
NLRB Adopts New Standard for Assessing Facial Lawfulness of Employer Work Rules
The National Labor Relations Board (NLRB or the Board), in a 3-1 decision on August 1, 2023, once again overruled existing precedent and declared that all employer work rules that reasonably could be read to restrict Section 7 activity are presumptively unlawful under federal labor law. The decision eliminates the Board’s recent use of rule “categories” to provide clarity to employers and employees and instead adopts a burden-shifting scheme building off earlier Board precedent.
NLRB Adopts New Standard for Assessing Facial Lawfulness of Employer Work Rules
The National Labor Relations Board (NLRB or the Board), in a 3-1 decision on August 1, 2023, once again overruled existing precedent and declared that all employer work rules that reasonably could be read to restrict Section 7 activity are presumptively unlawful under federal labor law. The decision eliminates the Board’s recent use of rule “categories” to provide clarity to employers and employees and instead adopts a burden-shifting scheme building off earlier Board precedent.
Five-Member Labor-Management Relations Team Led by Adam Abrahms Joins Morgan Lewis
CENTURY CITY, June 8, 2023: Morgan Lewis will add a five-member labor team in Century City, led by Adam Abrahms, who most recently co-chaired the labor-management relations practice at Epstein Becker & Green and served on the firm’s Board of Directors.
Former NLRB Chairman John Ring Returns to Morgan Lewis’s Preeminent US Labor/Management Relations Team
WASHINGTON, January 30, 2023: Morgan Lewis’s renowned US labor/management relations practice welcomes the return of John Ring as a partner resident in Washington, DC. Reuniting with another former Chairman and a former member of the National Labor Relations Board (NLRB), John’s return strengthens Morgan Lewis’s long tradition as the trusted advisor to employers of all sizes on business-critical matters. “We are proud of John’s service to our government and are delighted to welcome him back.
NLRB Protects ‘Scabby the Rat’ Instead of Neutral Parties | JD Supra
The National Labor Relations Board, in one of its most significant decisions in recent years on “union protest” issues, has substantially eroded the protection given to “neutral” parties when unions erect large inflatable rats and other displays targeting businesses that have no direct involvement in the underlying labor dispute.
The PRO Act’s Changes to ‘Independent Contractor’ Status: Unraveling the US Economy | JD Supra
The Protecting the Right to Organize Act, or PRO Act (H.R. 842, S. 420), would make extensive changes in US labor laws, including the PRO Act’s reformulation of “independent contractor” status. This is not a mere technical redefinition: it would substantially unravel and change large segments of the US economy and adversely affect millions of service providers who currently view themselves as independent contractors governed by their own entrepreneurial decisions.
INSIGHT: NLRB Finally Limits Protection of Abusive, Profane, Offensive Conduct
The National Labor Relations Board, in its long-awaited decision in General Motors LLC, abandoned its problematic standard around the discipline and discharge of employees who engage in abusive conduct in connection with protected concerted activity. Particularly in this moment in time, when creating safe, respectful, diverse and inclusive workplaces is so important, the board’s clarification is welcome news.
INSIGHT: NLRB Finally Limits Protection of Abusive, Profane, Offensive Conduct
The National Labor Relations Board, in its long-awaited decision in General Motors LLC, abandoned its problematic standard around the discipline and discharge of employees who engage in abusive conduct in connection with protected concerted activity. Particularly in this moment in time, when creating safe, respectful, diverse and inclusive workplaces is so important, the board’s clarification is welcome news.
NLRB Implements New Election Rules Despite Stumbling Block | JD Supra
The National Labor Relations Board (NLRB or Board) has implemented changes to its election rules, but in the near term, the new procedures are not completely what the Board – or employers – envisioned. The NLRB has been busy, which has included two recent sets of changes in the Board’s union representation election regulations. On December 18, 2019, the Board published a broad-based final rule changing many election procedures and providing more time for pre-election campaigning.
NLRB Proposes Changes to Union Election Procedures – and Board Update | JD Supra
The National Labor Relations Board (NLRB or Board) has been increasingly energetic as 2019 progresses. Its latest initiative is the August 12 publication of new proposed rules that would change three important aspects of the NLRB union representation election (union election) procedures. This LawFlash covers important resulting takeaways. We first describe the Board’s most recent proposed changes in NLRB union election procedures. Comments on these proposed changes are due on October 11, 2019.
NLRB Rulemaking Seeks to Clarify Joint-Employer Standard | JD Supra
On September 14, the National Labor Relations Board published a Notice of Proposed Rulemaking that could fundamentally change the joint-employer standard established by Browning-Ferris in 2015 and provide more clarity and stability for parties dealing with a joint-employer allegation.
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