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The National Labor Relations Board bungled its handling of an important case in response to conflict-of-interest concerns, the board’s top lawyer said.
NLRB General Counsel Peter Robb late April 5 asked the board to allow Member William Emanuel to make his own decision about whether he should sit out the Hy-Brand Industrial Contractors case. Robb said the board’s other three members—Chairman Marvin Kaplan (R), Lauren McFerran (D), and Mark Gaston Pearce (D)—wrongly decided to scrap a previous ruling in the case after the NLRB’s inspector general said Emanuel shouldn’t have participated in the case.
“The three other Board Members appear not to have referred the recusal motion to Member Emanuel,” Robb wrote. “They instead decided on their own to disqualify him from participating in the case—a seemingly unique event in Board history.”
Robb’s filing reveals what could be the beginnings of a rift between the Republicans on the board, which currently has a 2-2 partisan split. Robb, who noted in the filing that he “is a Presidential appointee himself,” argued that Kaplan wrongfully teamed up with Democratic members to shut Emanuel out of the decision-making process in the Hy-Brand case.
The litigation involves one of the most highly charged questions in labor law: When can one business be considered a “joint employer” of another’s workers for unionization and unfair labor practice purposes?
The Obama-era NLRB in Browning-Ferris shifted to an “indirect control” test that makes it easier to tag multiple companies as joint employers of the same workers. That move, which drew sharp criticism from GOP lawmakers and the business community, was widely expected to be overturned once Republicans regained control of the board late last year.
In Hy-Brand, the Republican majority-board—former Chairman Philip Miscimarra (R), Kaplan, and Emanuel—originally overturned Browning-Ferris and reverted to a “direct control” test for joint employment. The board later vacated the decision after Inspector General David Berry said Emanuel should have sat out Hy-Brand because his former law firm represents a staffing company in the Browning-Ferris case.
Emanuel has said in a response to the inspector general’s report that the agency’s designated ethics official at some point said she didn’t think he had an obligation to recuse himself, but that Berry blocked her from putting that opinion in writing.
Robb told the board it should reconsider the latest Hy-Brand decision and allow Emanuel an opportunity to weigh in on whether he should be involved in the case. He also suggested that the board make public the ethics official’s reports on the recusal issue.
“General Counsel Robb is correct in all respects, and it’s refreshing to see some thoughtful analysis coming from the board,” Roger King, senior lawyer for the HR Policy Association, told Bloomberg Law April 6.
“To have three board members exclude another board member, as noted in General Counsel Robb’s filing, is not only without precedent, but it shows exceedingly poor judgment,” King said. “It also reflects poorly on the agency as a whole.”
King said many in the management community “have been saying this privately throughout Washington to anyone that would listen to us.”
But at least one former board chairman, a Democrat appointed by Bill Clinton, said the filing doesn’t amount to much. And some observers said they believe Robb has little chance to convince the Democratic members to shift their position.
At the board’s lawyer, Robb’s “role is to follow the Board’s instructions, not to tell the Board what to do,” William Gould, now a law professor at Stanford, told Bloomberg Law in an April 6 email. Moreover, “the Board is the ultimate authority on the law inside the agency and this includes ethical obligations.”
King agreed that Robb is the board’s representative but added that “certainly the board’s lawyer has a great deal of latitude to comment” on cases and “state the position of the office of general counsel.”
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