12.21.17

Scott, Murray: National Labor Relations Board Decision to Weaken Workers’ Rights “Represents a Low-Point for the Board”

WASHINGTON– Led by Representative Bobby Scott (D-VA), ranking member of the House Education and the Workforce Committee, Senator Patty Murray (D-WA), ranking member of the Senate Health, Education, Labor, and Pensions (HELP) Committee, Senators Elizabeth Warren (D-MA) and Maggie Hassan (D-NH), and Representatives Gregorio Kilili Camacho Sablan (D-MP) and Donald Norcross (D-NJ) sent a letter to the National Labor Relations Board (NLRB) Member, William Emanuel, voicing their concerns that his vote to overturn the Board’s 2015 Browning Ferris decision was compromised by his former law firm’s representation of a party in that case when it was before the Board. The Browning Ferris decision ensured that workers’ right to collectively bargain was still protected in a changing 21st century economy. This new decision will shield certain employers across the country who indirectly, but importantly, control workers’ terms and conditions of employment from liability and collective bargaining obligations. The law firm that employed Member Emanuel just months ago represented one of the employers in Browning Ferris, creating a potential conflict of interest. The Members of Congress demanded answers on Emanuel’s recusal obligations.

 “The Hy-Brand decision represents a low-point for the Board,” wrote the members. “This decision by you and the two other Republican Members of the Board is a rushed and ill-considered action that will have long-term repercussions for the Board’s reputation as a neutral administrator of the NLRA. The headlong rush to nullify the BFI decision without fair process or consideration of the collateral impact will strip away the NLRA’s protections from millions of workers.”

The Republican-controlled Board jammed through this decision two days before the now former-Chair Miscimarra’s term expired. Additionally, the Board broke with its long established practice by failing to invite briefs from the public regarding the significant reversal of the decision.

 

Full text of the letter below and PDF can be found HERE.

 

December 21, 2017

Hon. William Emanuel

Member

National Labor Relations Board

1015 Half Street, S.E.

Washington, D.C. 20570

 

Dear Member Emanuel:

We write with regard to your participation in the National Labor Relations Board’s (Board) decision in Hy-Brand Industrial Contractors (Hy-Brand)[1] and the Board’s motions for remand in Browning-Ferris Industries (BFI)[2] and Volkswagen Group of America (Volkswagen).[3] Last week, you provided a determinative vote in Hy-Brand to overturn the Board’s previous decision in BFI, which held that companies with indirect or reserved control of the terms and conditions of employment could be a “joint employer” under the National Labor Relations Act (NLRA). [4]

The Hy-Brand decision represents a low-point for the Board. The Board broke with its long established practice by failing to invite briefs from the public regarding this significant reversal. The Board took this step although the BFI decision itself remains under review by a federal court of appeals. The Board took this action although no party in Hy-Brand sought such a step, and did so in a case involving a single employer that could have been easily resolved on the facts. This decision by you and the two other Republican Members of the Board is a rushed and ill-considered action that will have long-term repercussions for the Board’s reputation as a neutral administrator of the NLRA. This headlong rush to nullify the BFI decision without fair process or consideration of the collateral impact will strip away the NLRA’s protections from millions of workers.

Additionally, we note that Littler Mendelson, the law firm where you were a shareholder until joining the Board less than three months ago, represented one of the parties in both BFI and Volkswagen when they were before the Board.

Accordingly, we request that you provide us the following information by January 12, 2018:

  1. When were you assigned to the Hy-Brand case?

 

  1. Were you on the original three-member panel in Hy-Brand?

 

  1. Did you request to participate in Hy-Brand?

 

  1. Given that the parties in Hy-Brand did not brief the question of whether the BFI joint employer standard should be revisited, what briefs or other materials did you review in deciding Hy-Brand?

 

  1. Did the Board hold a vote to determine whether to invite briefs, arguments, or other information from the public regarding consideration of overturning the holding in BFI?

 

  1. If so, please provide any record, vote tally sheet, meeting minutes, and any other document concerning any such vote among Board members.

                                       

  1. Please describe in full, and provide any documents relating to, your participation in the Hy-Brand case.

 

  1. Please provide any communications that occurred after January 19, 2017 between you, or a member of your Board staff, and any attorney or staff member of Littler Mendelson that represented a party in the BFI matter.

 

  1. Please provide any communications that occurred after January 19, 2017 between you, or a member of your office, and any person or entity not employed by the Board, concerning BFI or any legal issue involved in BFI.

 

  1. Please provide any communications that occurred after January 19, 2017 between you, or a member of your staff, and any attorney or staff member of Littler Mendelson that represented a party in the Volkswagen matter.

 

  1. Please provide any communications that occurred after January 19, 2017 between you, or a member of your office, and any person or entity not employed by the Board, concerning Volkswagen or any legal issue involved in Volkswagen.

 

  1. Given that your former partners at Littler Mendelson P.C. represented a party in BFI before the Board, did you recuse yourself from the Board’s decision to move to remand the BFI case from the U.S. Court of Appeals for the D.C. Circuit back to the Board? If not, why not?

 

  1. Please describe in full, and provide any documents, including vote sheets, relating to your participation in the Board’s decision to move to remand BFI to the Board.

 

  1. Given that your former partners at Littler Mendelson P.C. represented a party in BFI before the Board, and that you have previously stated that you will recuse yourself from any Board cases in which Littler Mendelson represents a party, will you recuse yourself from BFI in the event that case is remanded to the Board?

 

  1. Given that your former partners at Littler Mendelson P.C. represent Volkswagen, did you recuse yourself from the Board’s decision to move to remand the Volkswagen case from the U.S. Court of Appeals for the D.C. Circuit back to the Board? If not, why not?

 

  1. Please describe in full, and provide any documents, including vote sheets, relating to your participation in the Board’s decision to move to remand Volkswagen to the Board.

 

  1. Given that your former partners at Littler Mendelson P.C. represent Volkswagen, and that you have previously stated that you will recuse yourself from any Board cases in which Littler Mendelson represents a party, will you recuse yourself from Volkswagen in the event that case is remanded to the Board?

 

  1. Please provide any guidance or other documents or communications that you received from the Board’s Designated Agency Ethics Official concerning your recusal obligations.


[1] 365 NLRB No. 156 (2017).

[2] Browning Ferris Indus. v. NLRB, Nos. 16-1028, 16-1063, 16-1064 (D.C. Cir.) (motion for remand filed Dec. 19, 2017).

[3] Volkswagen Grp. Of Am. v. NLRB, Nos. 16-1309, 16-1353 (D.C. Cir.) (motion for remand filed Dec. 19, 2017).

[4] 362 NLRB No. 186 (2015).

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