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National Labor Relations Board General Counsel Rebukes Board

It seems there is never a slow day over at the National Labor Relations Board. Today, the NLRB General Counsel Peter Robb issued a legal opinion that strongly disagreed with the Board’s highly controversial and abrupt action vacating its own decision in Hy-Brand Industrial Contractors (see background here, here and here).

The Hy-Brand decision involves the important issue of joint employment and restored the traditional definition of when two companies are found legally responsible for a group of employees. It is crucial for the NLRB to resurrect the traditional joint employer standard. The current joint employer standard created by the NLRB’s Browning-Ferris decision caused immense confusion and harm to small businesses and the economy. The traditional joint employer standard has served all stakeholders—workers, consumers, and employers—well for decades and should be reinstated.

In the legal opinion, Robb requests the Board should vacate its decision to vacate Hy-Brand and “allow Member [William J.] Emanuel to make his own recusal determination in the first instance.”

NLRB General Counsel Robb chastises the Board for deciding to unilaterally disqualify member Emanuel from participating in the decision to vacate Hy-Brand. Robb cites NLRB precedent where the decision to recuse is up to the member in question, not other members of the Board.

The NLRB should strongly consider the general counsel’s opinion and reconsider its decision to vacate Hy-Brand. NLRB members took unprecedented action in hijacking the authority of the Board by sidelining member Emanuel and in the process upset the due process rights of parties involved in the Hy-Brand case by excluding a sitting Board member.