To start, I completely agree with everything Ben wrote about the need for the NLRB to withdraw the Hy-Brand decision because of Member Bill Emanuel’s improper participation in the decisionmaking process. My only departure is that I don’t think Ben’s call for action goes far enough.
The Board should not only take Ben’s advice to invalidate the Hy-Brand decision, but should rethink the process it used that resulted in the problematic decision. If the Board decides to do a “do-over” on Hy-Brand they should fix not only Emanuel’s participation but also reverse the breach of Board precedent in deciding such a significant decision without any input from the public. The “mistake” of allowing Emanuel to improperly participate was just one symptom of the disease of their rush to change the joint employer law. As I noted in a post shortly after Hy-Brand issued, the dissent in Hy-Brand questioned whether the process was so deficient as to violate the Administrative Procedures Act – that was before the question of Emanuel’s recusal had been raised. This time around the Board should take the time to do it right – invite amicus briefs and maybe even hold hearing.
The Board has been subjected to unprecedented political attacks over the past 10 years, with accompanying attacks on its credibility as a fair arbiter of the law. The December cases that issued as former Chair Phil Miscamarra was leaving added to the perception that political considerations have undue influence on the Board’s decisionmaking process. The “flagrant problem” described by the IG in his report on Hy-Brand feeds that narrative. The question of the standard for deciding joint employment status is one of the most important labor questions today. Thus, that the Board’s process deciding this issue has been called into question is especially problematic. The Board has an opportunity, however, to stem the damage by slowing down and taking the time to engage in an open and transparent process to issue a new decision in Hy-Brand.