Traditionally under the National Labor Relations Act, a company was considered to be a joint employer of another company’s employees only if the putative joint employer had direct and immediate control over the other company’s employees’ material terms and conditions of employment. However, in 2015, a National Labor Relations Board majority appointed by President Obama overturned thirty years of precedent in Browning-Ferris Industries of California, Inc., 362 NLRB No. 186 (3-2 decision), holding that a company is a joint employer even if it only exercises indirect control of essential terms and conditions of employment or only reserves the right to do so.
The issue was addressed again by the Board in late 2017 in Hy-Brand Industrial Contractors, Ltd., 365 NLRB No. 156 (3-2 decision). In Hy-Brand, a Board majority appointed by President Trump overruled Browning-Ferris and returned “to the principles governing joint-employer status that existed prior to that decision.”
One of the Board Members in the Hy-Brand majority was William Emanuel. Neither Emanuel nor his former law firm was involved in Hy-Brand at any point, nor has anyone claimed that either represented a Hy-Brand party at any time in any other matter. However, the NLRB’s Inspector General was asked by someone to investigate whether Emanuel should have been recused in Hy-Brand because his former law firm, but not Emanuel, represented one of the employers in Browning-Ferris before the Board.
The relevant authority for when recusal is required is Executive Order 13770, which prohibits an appointee from participating in a “particular matter involving specific parties.” Hy-Brand and Browning-Ferris involve different parties; no party is involved in both cases. Yet, IG David Berry concluded in his report to the Board of his investigation that the Hy-Brand majority’s decision’s incorporation of significant parts of the dissenting opinion in Browning-Ferris “consolidated the two cases into the same ‘particular matter involving specific parties.’” Berry cites no authority for this novel proposition that two separate cases become one because the majority decision in the case overruling an earlier case makes the same arguments that a dissent made in the earlier case. If this were the law, then no Board Member could participate in overruling an earlier decision in which there was a dissent if his former law firm was involved in that earlier case, because the arguments on a given issue are almost certainly going to be the same on the respective sides. It is worth noting here that former NLRB Member Craig Becker, as attorney for the Teamsters Local involved in Browning-Ferris, urged the D.C. Circuit to deny the Board’s motion to remand that case after Hy-Brand was decided, arguing that Emanuel should have been recused in Hy-Brand. The court remanded nonetheless, suggesting that the court might not agree with Berry.
IG Berry has not always been so rigid—or should I say inventive—about requiring recusal. Cases involving former National Labor Relations Board Member Craig Becker, a union-side lawyer, appointed by President Obama illustrate the point.
The NLRB in 1966 created what is called the “recognition bar,” a rule that where an employer voluntary recognized a union without an election, based on some showing of majority support for the union, the Board would not process a petition for an election to oust that union for a “reasonable time” after recognition. However, the Board later modified the recognition bar in Dana Corp. 351 NLRB 434 (2007) (3-2 decision), establishing a 45-day period after voluntary recognition during which employees could file a petition for an election to decertify the union. Becker, as counsel for the AFL-CIO, his then employer, signed an amicus brief in Dana Corp. urging that the recognition bar should be upheld.
Four years later, in Lamons Gasket Co., 357 NLRB 739 (2011) (3-1 decision), the Board, with Becker in the majority, overruled Dana Corp., despite the fact that in one of every four elections held under Dana Corp. an employee majority voted against union representation, id. at 751 (Member Hayes, dissenting).
National Right to Work Legal Defense Foundation attorneys represented the decertification petitioner in Lamons Gasket. We moved for Member Becker’s recusal based on the fact that he had been involved in Dana Corp. 357 NLRB at 740 n.3. However, Becker declined to recuse himself from Lamons Gasket for “the reasons fully explained in his concurrence in Service Employees Local 121RN (Pomona Valley Hospital Medical Center), 355 NLRB 234, 240 fn. 3 (2010) [Member Becker ruling on motions to recuse].” Id. The referenced Service Employees Local 121RN footnote, 355 NLRB at 240 n.3, reads as follows:
The Moving Parties in AT&T Mobility and Aramark argue that, under the terms of Executive Order 13490, my signing of the brief in the earlier Dana representation case necessitates my recusal from those two pending cases in which parties have asked the Board to revisit the legal question addressed in Dana. But while the Moving Parties quote sec. 1(2) of the Order, which requires that, for a period of 2 years after assuming office, I recuse myself from participation “in any particular matter involving specific parties that is directly and substantially related to my former employer or former clients,” the Moving Parties do not quote (or acknowledge in any way) sec. 2(k) of the Order, which defines the term “directly and substantially related” to encompass only “matters in which the appointee’s former employer or a former client is a party or represents a party.” Neither of my former employers is a party or represents a party in AT&T Mobility or Aramark. Moreover, my former employer and client, the AFL–CIO, was not a party to the original Dana case, but rather an amicus curiae. Thus, my signing of the brief in the earlier Dana case is appropriately analyzed under the principles set forth in the text that follows.
One of “the principles in the text that follows” Becker’s footnote in Service Employees Local 121RN is that
under Federal labor law, the President is entitled to appoint individuals to be Members of the Board who share his or her views on the proper administration of the Act and on questions of labor law policy left open by Congress. That process would be frustrated if the expression of views on such questions were considered disqualifying or grounds for recusal when cases raising those questions arose before the Board.
Id. at 241. That principle, and Becker’s reasoning for not recusing in Lamons Gasket, apply with even greater reason to Emanuel, whose only connection to the earlier case was that someone else in his former firm was involved, than they applied to Becker, who was personally involved in the earlier case for his then employer.
Foundation attorneys represented the charging party in Service Employees Local 121RN and requested Becker’s recusal for an additional reason, i.e., that the respondent union was an affiliate of the Service Employees International Union and before being appointed to the Board Becker had been employed by and served as counsel for the SEIU. Becker rejected this contention on the ground that “SEIU is a separate and distinct legal entity from the many local labor organizations affiliated with” it, citing cases none of which involved the SEIU. Id. at 242.
When the Foundation brought Becker’s refusal to recuse in cases involving SEIU affiliates to the attention of Congressman Darrell Issa, then Ranking Minority Member on the House Committee on Oversight and Government Reform, the Congressman asked NLRB IG Berry to investigate. Foundation attorneys supplemented the Congressman’s request in a six-page letter demonstrating that by explicit SEIU constitutional provision and in practice, SEIU exerts near total control over and is financially tied to its locals, giving rise to a conflict of interest for Becker in all cases involving SEIU locals. With no explanation as to why that was not true, Berry in conclusory fashion rubber-stamped Becker’s assertion in Service Employees Local 121RN that SEIU and its affiliates are separate legal entities and concluded that Becker need not recuse except where Becker personally had represented an SEIU local.
In short, IG Berry has broadly construed the recusal requirements for Member Emanuel, but did so only narrowly for former Member Becker. Moreover, Berry’s citation of Becker’s Service Employees Local 121RN opinion concerning recusal in Berry’s response to Congressman Issa suggests that Berry knows, or should know, that the grounds on which Becker relied in not recusing himself in Lamons Gasket apply a fortiori to Emanuel in Hy-Brand.