The National Labor Relations Board (NLRB) is under increasing scrutiny for its rash judgement to vacate its Hy-Brand decision, which restored the Board’s previous standard for what constitutes “joint employment,” under federal labor law, as well as for the Inspector General’s report that ignited this needless controversy.
On March 9, 2018, a motion for reconsideration of the NLRB’s order to vacate the Hy-Brand decision was filed. The motion is highly critical of the Inspector General report which concluded that board member William Emanuel, due to an alleged conflict of interest, should have recused himself from the Hy-Brand case.
Key arguments made by the motion:
- The Board usurped authority under the National Labor Relations Act. The Act states the NLRB shall consist of five members. The full Board is permitted to delegate authority to a three member panel, but all sitting Board members must be involved in that decision. However, in the order to vacate the Hy-Brand decision, the Board admits that “Member Emanuel took no part in the delegation of authority to the present panel.” This an abuse of power to sideline one sitting Board member and allows “any three members of the Board to highjack the authority of the other members.”
- The Board made the decision in violation of the Government in the Sunshine Act. Under the Sunshine Act, a public notice is required that details the time, place, and subject of a meeting. The NLRB failed to provide a public announcement of its meeting prior to vacating the Hy-Brand decision.
- NLRB Inspector General report is baseless. The motion which put forth the Inspector General report on the Hy-Brand case “fails first year law school scrutiny.” The report did not cite any detail on why such an investigation was even necessary, or address the many other errors in the investigation (for background on the Inspector General report, see my previous post).
- Board member Mark Pearce should recuse himself from future considerations in the Hy-Brand case. During pending Board deliberations, member Pearce revealed at an American Bar Association meeting that “an important decision on the Hy-Brand case would be issued the next day,” as reported by The Wall Street Journal. Making public announcements of Board internal deliberations violates the Board’s Rules and Regulations. A former Republican NLRB member was forced to resign over leaking draft Board decisions during the Obama administration.
- Leaks from the Inspector General’s investigation to the press and members of the Senate denies respondents’ due process. Inspector General investigations must keep privileged or confidential information private. The Inspector General failed in this respect. During the pending investigation, investigative journalism publication ProPublica reported leaked documents from the Inspector General report. Further, Sen. Patty Murray (D-WA) even admitted knowledge of the investigation during a congressional hearing. The motion states that investigation leaks “interefered with Respondents’ right to a fair hearing on the facts on law, rather than political considerations and Congressional pressures.”
The motion for reconsideration illustrates a series of seemingly politically motivated actions taken by some NLRB members and the Inspector General, in which proper Board protocol was tossed aside by sidelining a sitting member of the NLRB and allowing confidential information in the custody of the Inspector General to be leaked to the press and congressional offices.
This has the look of a coordinated attack to hinder the Trump NLRB’s ability to reform Obama-era policies. The Inspector General stirred up a controversy over the decision with a report that contained little in terms of facts or legal analysis. Then, someone in the Inspector General’s office, or with access to the investigation, leaked the investigation to the public, which cast doubt on the decision to reverse NLRB policy related to joint-employer relationships. Opponents of the Hy-Brand decision, primarily Sen. Murray and Sen. Elizabeth Warren (D-MA), used this suspect report to pressure the Board and sway public opinion.
Congress must exercise its oversight authority to investigate this fiasco.