Vice President, Labor Policy, U.S. Chamber of Commerce
March 15, 2018
A company involved in a controversial case at the National Labor Relations Board (NLRB)—Hy-Brand—filed a Motion to Reconsider with the Board on March 9. The motion asks the Board to revisit the February 26 decision by a three-Member panel to vacate the Board’s December 14, 2017, decision in the case. It also slams the NLRB for multiple flaws in the process by which the panel did so. The reason for the interest in the reversal of the Hy-Brand decision is because it reinstated the Board’s expanded joint employer precedent under Browning-Ferris.
The unusual move to vacate the Hy-Brand decision came after an internal NLRB Inspector General (IG) report opined that Member William Emmanuel should not have participated in the case. In its motion, Hy-Brand blasted that opinion, saying the report “as ultimately released fails first year law school scrutiny” and “contains numerous omissions and misconstructions of fact, obscured by its incompleteness.”
Hy-Brand’s motion faulted the IG for citing “no authority for why ‘it was necessary’ to investigate the decision in Hy-Brand” in the first place, observing that “[a]rmed with no authorities, the IG undertook an ‘Analysis’ of Hy-Brand with a rudimentary level of scrutiny.”
Furthermore, the motion challenged the IG’s conclusion that Emanuel’s participation posed a problem, saying that his “participation in Hy-Brand does not violate the very Regulations cited in the IG report, because the Regulations specifically exempt situations like that here.”
The Hy-Brand motion also alleged that the Board panel violated the Government in the Sunshine Act because it “met in some secret fashion” without the required public notice. It also alleged that by excluding Emmanuel, the panel deprived him of the ability to decide whether to recuse himself and said it “acted as if there were two vacancies on the full Board.”
Perhaps more seriously, Hy-Brand called for an investigation into the allegation that Member Mark Pearce “let slip” at a meeting of the American Bar Association that the decision to vacate the case was forthcoming. Hy-Brand called that an “egregious breach of confidentiality and the Board’s deliberative process.”
In the end, it would seem that this case is bound for a long legal battle, which further underscores the need for a legislative fix to settle the joint employer issue. Congress can include a funding rider in the pending omnibus appropriations bill to block further use of the Browning-Ferris joint employer standard. Even better, the Senate can pass the Save Local Business Act (H.R. 3441) to prevent a repeat of the Hy-Brand fiasco.