Conflict Cited in NLRB Joint-Employer Case Draws Hearing Request
A top House Democrat wants Congress to review whether a Trump labor-board appointee should have recused himself before casting the deciding vote to overturn a hot-button ruling making it easier for employees of contractors and franchises to pursue claims against big corporations.
In a report issued Feb. 9 and shared with members of Congress Feb. 15, the National Labor Relations Board’s Inspector General David Berry flagged what he called “a serious and flagrant problem and/or deficiency” in the handling of conflict-of-interest issues.
Berry said that NLRB member William Emanuel, whose former law firm Littler Mendelson had represented one of the companies involved in an Obama-era ruling to widen the circumstances under which a company can be considered a “joint employer” of workers whom it doesn’t directly pay, was wrong to participate in overturning the ruling in a 3-2 December vote.
In a letter sent Friday, Virginia Democratic Congressman Bobby Scott, the ranking member of the House Committee on Education and the Workforce, urged its chair, North Carolina Republican Virginia Foxx, to schedule a hearing with Berry and the labor board’s members, including Emanuel, in order to “secure answers” about the agency’s handling of the controversy. “The Inspector General’s findings to date are especially disturbing for an agency designed to be a neutral adjudicator,” Scott wrote.Scott’s letter notes that a year ago, the Republican-controlled committee singled-out labor board decisions affecting "joint-employer" as an area that would get "particular scrutiny" in its oversight work.
The letter follows blistering comments this week from Democrats including his Senate counterpart Patty Murray as well as Massachusetts Senator Elizabeth Warren, who both called for the NLRB to re-hear the “joint-employer” case.
The case in which Emanuel voted, Hy-Brand, was not directly about the companies in the 2015 case, but the inspector general, citing an internal agency email as well as the text of the decision, wrote that the way Hy-Brand was handled amounted to a “do over” in which the new case was effectively “merely the vehicle” to reconsider the old one -- which at the time was still pending in federal court.
Some have complained that the inspector general, in saying that former management attorney Emanuel should have recused himself, is applying a different standard to him than to Democratic appointees who’ve worked for unions in the past. “IG Berry has not always been so rigid–or should I say inventive–about requiring recusal,” National Right to Work Legal Defense Foundation Vice President Raymond LaJeunesse wrote Thursday in an essay published by the Federalist Society.
In a Feb. 15 letter to members of Congress sharing the IG report, NLRB Chairman Marvin Kaplan said the agency was reviewing recusal procedures and “considering appropriate actions” regarding the case in question.
Next Article Previous Article