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February 01, 2017 Practice Points

President Appoints Philip A. Miscimarra NLRB Acting Chairman

By Mitchell L. Marinello

President Donald J. Trump has named Board Member Philip A. Miscimarra Acting Chairman of the National Labor Relations Board (NLRB). This appointment may be significant for those following Horton and the related cases now scheduled for hearing before the United States Supreme Court. In Horton, the Fifth Circuit reversed a contrary NLRB ruling and held that

an employer does not engage in unfair labor practices by maintaining and enforcing an arbitration agreement prohibiting employee class or collective actions and requiring employment-related claims to be resolved through individual arbitration.

Despite that ruling, the NLRB has consistently ruled the same way, refusing to follow the Fifth Circuit's decision. Acting Chairman Miscimarra dissented from the NLRB ruling in Horton and may lead that agency on a new pathway.

As reflected in prior articles on this website, the Second Circuit is in accord with the Fifth Circuit and the Seventh and Ninth Circuits are not. The Supreme Court has granted certiorari in several similar cases and the contrasting views on the interaction between the Federal Arbitration Act and the National Labor Relations Act may soon be resolved.

Mitchell L. Marinello is a partner at Novack and Macey LLP, Chicago, Illinois.

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