Daily Labor Report®

Labor Board Members Accused of Foul Play

March 9, 2018, 9:08 PM

Hy-Brand Industrial Contractors asked the National Labor Relations Board March 9 to reconsider a recent decision on the closely watched joint employer issue, arguing that board members “obliterated” the company’s right to due process.

Hy-Brand’s lawyer alleged NLRB Chairman Marvin Kaplan (R), and members Mark Gaston Pearce (D) and Lauren McFerran (D) wrongly shut member William Emanuel (R) out of the board’s recent decision to scrap an earlier ruling in an unfair labor practice case against the company. That decision left in place a contriversial Obama era ruling that made it easier to tag multiple companies as joint employers for labor liability purposes.

Pearce also inappropriately told lawyers at an American Bar Association conference in Puerto Rico that an important decision in the case was coming, one day before the ruling became public, the lawyer said.

“Advance notice of issuance of the board decision by Member Pearce is an egregious breach of confidentiality and the board’s deliberative process,” Hy-Brand lawyer Michael Avakian wrote in a motion for reconsideration. Avakian said Pearce’s alleged disclosure of case information violates federal law and may be grounds for a fine, imprisonment or removal from office. Avakian requested the board to ask the Office of Government Ethics to investigate the allegation.

An NLRB spokeswoman declined to comment for this story.

The filing is the latest twist in the ongoing debate over joint employer liability under federal labor law for multiple companies that control the same workers. That issue has been clouded in recent weeks by conflict-of-interest concerns related to Emanuel’s participation in an earlier decision in the Hy-Brand case.

Avakian also argued that the board wrongly relied on an NLRB inspector general report to justify dropping the earlier decision. Inspector General David Berry said last month that the earlier decision was rushed through in the waning days of former Chairman Philip Miscimarra’s (R) term in a way that tied it too closely to the separate Browning-Ferris case. Emanuel had already agreed to sit out the Browning-Ferris case because of his former law firm’s participation in the litigation.

Joint Employer Jumble

The board in December ruled that Hy-Brand and Brandt Construction Co. are joint employers under federal labor law and both responsible for the firing of seven employees who engaged in a work stoppage. Miscimarra, Kaplan, and Emanuel also used the decision to overturn Browning-Ferris and revert to a “direct control” test for joint employment.

The Obama-era NLRB in Browning-Ferris had shifted to an “indirect control” test that makes it easier to tag multiple companies as joint employers of the same workers for collective bargaining requirements and unfair labor practice charges. That move, which drew sharp criticism from GOP lawmakers and the business community, was widely expected to be overturned once Republicans regained control of the board late last year.

Kaplan, Pearce, and McFerran last month voted 3-0 to vacate the board’s earlier decision in the Hy-Brand case, following Berry’s report. That left the board’s 2015 decision in Browning-Ferris as controlling law on the joint employment question.

The five-member NLRB is currently locked in a 2-2 partisan split. Management attorney John Ring would give Republicans control of the board if the Senate confirms his nomination for an NLRB seat.

To contact the reporter on this story: Chris Opfer in New York at copfer@bloomberglaw.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bloomberglaw.com; Terence Hyland at thyland@bloomberglaw.com;

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