NLRB’s Joint Employer rule on again after GOP board member’s vote tossed
Sen. Pat Murray has accused the Trump appointee to the NLRB of conflict of interest. | AP

WASHINGTON—The National Labor Relations Board’s on-again off-again rule holding joint employers – the corporate headquarters of a chain – and its individual franchises jointly responsible for obeying or breaking labor law is on again.

That’s because the board had to toss out its decision last year reversing the Obama-era rule after Trump-named GOP board member William Emanuel, formerly a management-side labor lawyer from Los Angeles, voted illegally in the case, the agency’s Inspector General ruled.

That left the three remaining three members of the NLRB, two Democrats and the sole Republican, no choice but to dump their old decision. They did so on Feb. 26.

It also left House Democrats calling for a hearing on Emanuel’s illegal vote, and Sen. Patty Murray, D-Wash., the top Democrat on the Senate Labor Committee denouncing Emanuel’s “conflict of interest,” praising the board’s reversal and reiterating every NLRB member “should be squarely focused on ensuring workers’ rights are fairly upheld.”

But Murray did not demand a hearing on Emanuel, yet. A call to her office asking what she would specifically do about his conflict of interest was not returned.

Meanwhile the ruling House Republicans urged their Senate counterparts to approve an already-passed bill outlawing the NLRB’s old joint employer decision.

The joint employer ruling could affect millions of workers in chains such as Motel 6, McDonald’s, Burger King and the like. That’s because workers trying to either unionize or bargain can be bounced, without the joint employer rule, from pillar – corporate headquarters — to post – the local franchise.

Local management can say their hands are tied and corporate honchos can respond labor relations are up to the locals.

The problem arose after the Senate approved Emanuel, partner and head of the labor section of a large Los Angeles law firm known for its management tilt and anti-union stands, took his seat on the board last year. During his confirmation hearing earlier, Emanuel had promised to recuse himself – not vote – on any case his firm was involved in.

But then the board voted 3-2 on party lines, in a decision involving Hy-Brand Industrial Contractors of Oregon, to reverse its prior ruling about joint employers and their responsibility. Emanuel was one of the three.

An Obama-era NLRB, in a case involving the Teamsters and Browning-Ferris Industries, had ruled joint employers are jointly responsible for labor law obedience – and labor law-breaking.

NLRB Inspector General David Berry found, however, that Emanuel’s firm, Littler Mendelson, represented the subcontractor involved in the original Browning-Ferris case. Berry told the House Education and the Workforce Committee that Hy-Brand was a virtual “do-over” of the older case – and that Emanuel should have recused himself for conflict-of-interest reasons. Such “7-day letters” from the NLRB’s Inspector General to Congress are very rare.

But with the board down one Republican seat due to a vacancy, and the Inspector General having tossed Emanuel off the joint employer issue, the remaining three members had to dump the Hy-Brand decision, reversing the anti-worker ruling of last year.

Congress could still wade into the mess. Responding to a request contained in Berry’s letter, Rep. Bobby Scott, D-Va., top Democrat on the ideologically polarized panel, asked its chair, right wing Rep. Virginia Foxx, R-N.C., to schedule an oversight hearing on Emanuel’s conflict of interest.

“The Inspector General’s findings to date are especially disturbing for an agency designed to be a neutral adjudicator,” Scott wrote Foxx. “Committee Democrats have inquired into the basis for Emanuel’s participation in Hy-Brand, but responses to date have been unsatisfactory. “

“To that end, I respectfully ask you schedule a hearing to secure answers and steps the NLRB has taken in light of the Inspector General’s findings of this ‘serious and flagrant problem and/or deficiency,’ and what steps the board will take to restore the public’s confidence.”

Foxx didn’t respond to Scott. Instead, she urged the Senate to pass the legislation outlawing the board’s reinstated joint employer rule. Neither Murray nor Senate Labor Committee Chairman Lamar Alexander, R-Tenn., have responded to that demand. Their panel will hold a hearing on March 1 on Trump’s nominee for the vacant NLRB seat.


Mark Gruenberg
Mark Gruenberg

Mark Gruenberg is head of the Washington, D.C., bureau of People's World. He is also the editor of Press Associates Inc. (PAI), a union news service in Washington, D.C. that he has headed since 1999. Previously, he worked as Washington correspondent for the Ottaway News Service, as Port Jervis bureau chief for the Middletown, NY Times Herald Record, and as a researcher and writer for Congressional Quarterly. Mark obtained his BA in public policy from the University of Chicago and worked as the University of Chicago correspondent for the Chicago Daily News.