NLRB’s joint employer rule on again after GOP board member’s illegal vote is tossed

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Washington (PAI) — 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, NLRB’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.

TAKING A STAND FOR WORKERS – SORT OF

It also left House Democrats calling for a hearing on Emanuel’s illegal vote, and Senator Patty Murray (D-WA), 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.

TOSSED FROM PILLAR TO POST

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 unionize or bargain without the joint employer rule can be bounced 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 local franchises.

THE VOTE IN QUESTION

The problem arose after Emanuel – a 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 Senate confirmation hearing, Emanuel had promised to recuse himself – not vote – on any case his firm was involved in.

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

The problem is that Emanuel’s law firm, Littler Mendelson, represented the subcontractor involved in the original joint employer ruling, a case involving the Teamsters and Browning-Ferris Industries.

NLRB Inspector General David Berry, in a rare decision, told the House Education and the Workforce Committee that Hy-Brand was a virtual “do-over” of the Browning-Ferris case – and that Emanuel should have recused himself for conflict-of-interest reasons.

With the NLRB short 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 anti-worker Hy-Brand decision and return to the original rule –– for now.

WHAT’S NEXT

Congress could still wade into the mess. Responding to a request in Berry’s letter, Rep. Bobby Scott (D-VA), the top Democrat on the House Education and the Workforce Committee, asked right-wing chairwoman Virginia Foxx (R-NC) to hold an oversight hearing on Emanuel’s “serious and flagrant problem and/or deficiency. The Inspector General’s findings are especially disturbing for an agency designed to be a neutral adjudicator.”

Foxx ignored Scott and has urged the Senate to pass a bill outlawing the joint employer rule.

The Senate Labor Committee held a confirmation hearing March 1 on Trump’s nominee for the vacant NLRB seat.

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