Union Moves to Keep Joint Employer Case in Federal Court

By Josh Eidelson (Bloomberg) and Hassan A. Kanu (Bloomberg Law)

Organized labor is trying to continue its fight against the Trump labor board’s recent reversal on “joint employer” liability in federal court, arguing in a filing Jan. 4 that the board’s decision was “defective.”

The motion, which was brought by the Teamsters union and co-written by former Obama NLRB member Craig Becker, asks the D.C. Circuit Court of Appeals to reconsider its Dec. 22 order remanding to the labor board the precedent-setting Browning-Ferris Industries case. The litigation concerns when multiple companies can be held legally liable for unlawful treatment of workers.

The Teamsters argues that board member William Emanuel should’ve recused himself from the board case that overturned the precedent set in Browning-Ferris because his former law firm represented a company involved in the Browning-Ferris case.

“Clearly, he could not have participated in Browning-Ferris,” Becker, now counsel to the AFL-CIO, told Bloomberg News Jan. 4. “But here, while Browning-Ferris is still pending he—through this other case—overturns the decision in Browning-Ferris, so it has exactly the same effect” as though he hadn’t properly recused himself from Browning-Ferris, Becker, who is general counsel of the AFL-CIO, told Bloomberg News Jan. 4.

The joint employer issue has been a lightning rod for business groups, unions, and employees, and getting the Obama precedent reversed was a key priority for industry groups. The level of concern about joint employer was “similar to thirty minutes before the planes hit the World Trade Center,” Shelly Sun, the chair of the International Franchise Association, told Bloomberg News in May.

“You knew they were coming, and you would have done anything to try to stop them. Ours is kind of the equivalent of that to the franchising industry,” Sun said. “The franchising industry ceases to exist if we don’t get joint employer defined and rolled back to the standard that we’ve all relied on.”

The union also said the new board case— Hy-Brand Industrial Contractors, Ltd.,—is likely to be appealed, and so it’s improper to rely on that decision to remand Browning-Ferris. The court granted the National Labor Relations Board’s motion to send the case back before the union, which intervened in the case, or some other party had a chance to oppose the request, the Teamsters said.

Attorneys representing Browning-Ferris didn’t immediately respond to Bloomberg Law’s request for comment.

Wrong Vehicle?

The Teamsters’ Jan. 4 filing contends that the majority-GOP NLRB’s December ruling in Hy-Brand Industrial Contractors, Ltd. wrongly used that case as a vehicle to overturn the Obama-era Browning Ferris decision.

The board stretched its analysis to answer a question it hadn’t been presented with, since it decided in Hy-Brand that the company was a “single employer,” according to the union. That made the board’s decision to address the joint employment question “both unnecessary and nonsensical,” the Teamsters said in the filing.

Becker suggested that the board’s decision to issue Hy-Brand along with a spate of other major policy reversals at the end of 2016 may have been imprudent.

“It’s not at all unusual that there is a spurt of decisions before a member’s term ends,” he said. “What’s unusual, and I would say unprecedented, is the number of major decisions the Board issued in the last three days of the former chairman’s term, which involved very important issues in which a precedent was overturned and in none of which did they give notice to interested parties and an opportunity to brief.”

The union attorney added that “someone would surely have made a motion to recuse” against Emanuel if the board had given more notice.

Browning-Ferris industries hasn’t yet formally responded to the motion.

To contact the reporters on this story: Josh Eidelson (Bloomberg) in Washington at jeidelson@bloomberg.net; Hassan A. Kanu (Bloomberg Law) in Washington at hkanu@bloomberglaw.com

To contact the editors responsible for this story: Chris Opfer at copfer@bloomberglaw.com; Wes Kosova (Bloomberg) at wkasova@bloomberg.net

Copyright © 2018 The Bureau of National Affairs, Inc. All Rights Reserved.