NLRB conflict voids ’17 decision

Joint-employer ruling reversed

The National Labor Relations Board on Monday threw out one of its rulings from 2017 — a 3-2 victory for major U.S. corporations — after an internal agency report that found that a potential conflict-of-interest had tainted the vote.

The December ruling, called Hy-Brand, had reversed a controversial Obama-era “joint employer” decision empowering workers to pursue claims against, or seek collective bargaining with, major corporations that don’t sign the workers’ paychecks, such as franchisers or clients of contractors. The vote overturning that 2015 case included support from Trump-appointed William Emanuel, whose former law firm had represented one of the companies in the original case, Browning-Ferris.

In a report issued Feb. 9, NLRB Inspector General David Berry said Emanuel should not have cast a vote overturning Browning-Ferris. While the Hy-Brand case involved companies different from those in 2015, Berry wrote, the way the NLRB handled it amounted to a “do over” in which the

new case was “merely the vehicle” to reconsider the old one — which at the time was still pending in federal court. Berry said the issue revealed “a serious and flagrant problem and/or deficiency” in the NLRB’s handling of conflictof-interest issues.

The order vacating HyBrand was issued by a 3-0 vote in which Emanuel didn’t participate, according to a statement Monday from the agency, which said the move was made “in light of the determination by the board’s

designated agency ethics official that member Emanuel is, and should have been, disqualified from participating in this proceeding.”

The inspector general’s report stirred denunciations from congressional Democrats, including House Committee on Education and the Workforce ranking member Bobby Scott, who urged that hearings be held with Berry and NLRB members, and Sens. Patty Murray and Elizabeth Warren, who said in a letter to Emanuel on Monday morning that Berry’s findings “indicate that you directly participated in an extraordinarily consequential decision

from which the law required your recusal.” Berry will be issuing a separate report as to whether Emanuel’s actions constituted misconduct, according to the senators.

In a statement following the NLRB order, Rep. Virginia Foxx of North Carolina, a Republican who chairs the House committee overseeing the NLRB, described the original Browning-Ferris decision as “a gift” from “three former union attorneys appointed to the NLRB by President Obama” and urged the Senate to take up a bill, already passed by the House, that would overturn BrowningFerris.