As we last reported, recently seated Republican Member William Emanuel, who joined the Board in 2017, was under attack from Democratic senators, who asserted that he committed an ethical violation by participating in an important joint employment case that we reported on in December. In that case, Hy‐Brand, the Board overruled, 3‐2, the standard for joint employment in the 2015 Browning‐Ferris decision, which was then awaiting review by the U.S. Court of Appeals for the District of Columbia Circuit. After the Hy‐Brand standard effectively made Browning‐Ferris “dead law,” the D.C. Circuit remanded Browning‐Ferris to the Board at the Board’s request.
Browning‐Ferris was a controversial decision that expanded the basis for a finding of joint employment. The decision was widely criticized by employers, in part because of the threat that the new standard posed to franchise relationships. Thus, the Hy‐Brand decision, which vacated Browning‐ Ferris, was welcomed by employers.
Since we last reported on the Emanuel recusal controversy, Hy‐Brand has fought back. In a motion for reconsideration filed with the Board, Hy‐Brand contends that the Board violated Hy‐Brand’s due process rights by excluding Member Emanuel from the case and the decision to vacate. Hy‐Brand also contends that the decision to vacate was tainted by Member Pearce’s comments at an American Bar Association meeting on February 25 that an important decision was coming the next day. According to Hy‐Brand, the Pearce comments were “an egregious breach of confidentiality and the Board’s deliberative process” and justified reconsideration of the decision to vacate. There apparently has been no ruling yet on Hy‐Brand’s motion.
Meanwhile, NLRB General Counsel Peter Robb filed a response in the Hy‐Brand case that is a scathing indictment of the Board’s action in vacating Hy‐Brand and seeks reconsideration of that decision. According to the General Counsel, the decision to vacate violated the due process rights of the General Counsel and Hy‐Brand. He also contends that the panel improperly relied on a document from the Board’s Designated Agency Ethics Official that was not part of the formal record in the case, and that the panel’s action violated Board policy by not allowing Emanuel himself to consider and decide the issue of recusal. In a footnote, the General Counsel notes that he disagrees with the NLRB Inspector General’s report that concluded that Member Emanuel violated ethical standards.
And in a March 22 letter to the Board’s Inspector General, counsel for Member Emanuel reportedly maintains, arguably correctly, that Member Emanuel had no conflict of interest and did not violate Board rules when he participated in the Hy‐Brand decision. (The actual letter is not available publicly.)
But wait. There’s more. Member Pearce’s comments at the February ABA meeting are now the basis for a complaint that the Competitive Enterprise Institute has lodged with the Inspector General. And the Inspector General himself is the subject of a complaint filed by the National Right to Work Foundation over his ethics report on Member Emanuel. In that complaint, Right to Work argues that the Inspector General improperly disclosed deliberative communications of the Board. The Right to Work complaint is summarized below, quoting from the Washington Examiner:
The OIG issued a report finding that an NLRB official violated the Standards of Ethical Conduct for Employees of the executive branch because he improperly disclosed nonpublic deliberative information. We believe that, by disclosing privileged deliberative, pre‐decisional communications in his two reports on Member Emanuel, IG Berry has committed the same violation," Raymond J. LaJeunesse, the foundation's legal director, said in a letter Thursday to the Council of the Inspectors General on Integrity and Efficiency, the independent federal office that oversees the inspectors general.
As for the Browning‐Ferris case, on March 1, the NLRB asked the D.C. Circuit to re‐consider review of the cross petitions in Browning‐Ferris Industries. On April 6, the D.C. Circuit granted the Board’s motion to reopen the review in Browning‐Ferris and placed the matter in abeyance until after the NLRB rules again in Hy‐Brand.
Now that the Board has a full complement, including three Republican Members who can vote as a majority on the issue, and assuming Member Emanuel or one of the other two other Republicans are not recused, the Board can again consider the appropriate joint employment standard in Hy‐Brand and possibly overrule Browning‐Ferris. And even if the Hy‐Brand case is littered with the residue of incorrect ethical opinions and actions of an Inspector General driven by political pressure, recent press reports indicate that NLRB General Counsel Robb has several other cases in the pipeline that could be the basis for overruling Browning‐Ferris and resurrecting a Hy‐Brand‐like standard for determining joint employment. Stay tuned, please, we know it is a lot!