An anti-union group is demanding records about the National Labor Relations Board’s abrupt reversal last month of a major case about corporate legal liability.
The National Right to Work Legal Defense Foundation filed a Freedom of Information Act request Monday targeting the case, known as Hy-Brand. The FOIA seeks a broad array of documents regarding the inner deliberations that led to the action by the board, the federal government’s top labor law enforcement agency.
The Hy-Brand case, decided by a 3-2 board vote in December, reversed a controversial Obama-era board decision known as Browning-Ferris that had vastly expanded the circumstances under which one business could be held liable for another business’s workplace policies, a legal doctrine called “joint employer.” Browning-Ferris made franchiser corporations potentially liable for actions by their franchisees, even if the latter are independent, privately owned businesses, a shift that alarmed business groups and was applauded by organized labor. The Hy-Brand ruling undid that.
However, in February the NLRB vacated its Hy-Brand ruling after a report by Inspector General David Berry said board member William Emanuel, a President Trump appointee, should have recused himself from voting in the case. Berry argued that Emanuel had a conflict of interest involving his previous employer, the law firm Littler Mendelson. That move meant the broader Obama-era standard was back in effect.
Critics of the ruling, such as the National Right to Work Legal Defense Foundation, have disputed whether there was any conflict of interest. They note that while Littler Mendelson did represent a client in the Browning-Ferris case, it didn’t represent anyone in the Hy-Brand case.
“The NLRB’s Inspector General appears to be setting a troubling double standard regarding recusals, especially considering the same office looked the other way when former Service Employees International Union lawyer and Obama [NLRB] appointee Craig Becker refused to recuse himself from cases involving the SEIU and its affiliates,” said National Right to Work Foundation President Mark Mix. The foundation represents workers who dissent from unions and is representing the plaintiffs in a major Supreme Court case, Janus v. American Federation of State, County and Municipal Employees.
The FOIA request seeks internal board correspondence relating to the Hy-Brand case as well as any communications involving the case and “United States senators or their personal or committee staff, Members of the U.S. House of Representatives or their personal or committee staff, officials or employees of labor organizations, or members of the media or press.”
Berry’s initial probe was started following inquiries by Democratic Sens. Patty Murray of Washington and Elizabeth Warren of Massachusetts regarding whether Emanuel should have recused himself. Murray and Warren were major supporters of the Obama-era joint employer doctrine as well as allies of organized labor.
“The public deserves to know the truth surrounding this double standard, especially given that it advances the concerted effort by Big Labor and its allies to block a full NLRB from reviewing controversial Obama-era rulings that limit the rights of workers who don’t want to associate with a labor union,” Mix said.
A representative for the board declined to comment.
