Labor Watchdog Demands Records on NLRB Recusal

Right to Work Foundation says agency handling of Trump appointees indicates a double standard

William Emanuel
William Emanuel / Youtube

One of the nation's top labor watchdogs is demanding that the federal government's top labor arbiter release information linked to its controversial decision to reinstate Obama era rules on franchising.

The National Right to Work Legal Defense Foundation is seeking records from the National Labor Relations Board (NLRB) relating to its decision to vacate its Hy-Brand Industrial Contractors ruling. The organization asked the agency, which rules on labor disputes and oversees union election campaigns, to supply communications between agency staffers and Democratic board members about Trump appointee William Emanuel's participation in the case, as well as how the agency handled recusal requests for former union attorneys.

Foundation president Mark Mix said the records are necessary to ensure fairness before the five-member board, which is partisan by design with three members from the majority party and two from the minority. He is interested in finding out whether management-side attorneys face increased scrutiny from nonpartisan ethics officials than their union attorney counterparts.

"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 in a statement.

In 2015, the Obama NLRB ruled in Browning Ferris to overturn decades of precedent to hold umbrella companies responsible for alleged labor violations committed by franchisees or subcontractors. Hy-Brand overturned the ruling and restored the joint-employer standard, which held companies liable only for violations caused directly by the parent's employment policies. In February the board's inspector general David Berry issued a memo saying Emanuel should have recused himself from casting the deciding vote because his former management-side law firm handled joint employment cases—though he himself did not participate in Browning Ferris.

"For all intents and purposes, Hy-Brand was merely the vehicle to continue the deliberations of Browning-Ferris," Berry said in the memo. "Because the Hy-Brand deliberation was a continuation of the Browning-Ferris deliberative proceedings … Member Emanuel should have been recused from participation in deliberations leading to the decision to overturn Browning-Ferris."

This is not the first time Berry has participated in a high profile dispute over recusal standards. The foundation pointed to Berry's 2010 defense of former SEIU attorney Craig Becker whose participation in cases involving local SEIU chapters as a boardmember indicated a double standard at the agency. Berry told Congress that Becker did not have a conflict of interest because local and international unions are distinct entities and the boardmember had not worked directly for the local.

Foundation spokesman Patrick Semmens said the agency appears to be taking an overly broad approach to ethics guidelines that would hamstring any Republican decision dealing with a previous Obama case. The Obama board issued numerous controversial decisions on everything from joint employer to micro-unions and student unionizations—issues that spawned numerous legal challenges from many of the nation's top management-side firms. Barring lawyers at such firms from participating on contentious matters would deprive the public of service.

"Make no mistake, union officials and their allies inside and outside the federal government don’t actually want a fully functioning five member NLRB that can look at high profile issues and when warranted overturn past precedent. They want a NLRB whose interpretation of the law is frozen in 2016," Semmens said. " This recusal issue and the double standard in how it is being applied, is just part of the attempt to prevent those union power grabs from being reviewed."

The agency declined to comment on the records request or respond to criticism about its handling of conflicts of interest. The board will have 20 business days to respond to the request, though it can request extensions.