As Bloomberg and Law360 report, the NLRB’s Inspector General (IG) has concluded that Board member William Emanuel should have been recused from Hy-Brand Industrial Contractors – the decision that overruled Browning-Ferris and retreated on the definition of joint employer. The essence of the IG’s report is that “the manner in which the former Chairman marshaled Hy-Brand through the Board’s deliberative process effectively resulted in a consolidation of the two matters [that is, Hy-Brand and Browning-Ferris] into one ‘particular matter involving specific parties.'” Similarly, the IG concludes that Hy-Brand became simply a “continuation of the Browning-Ferris deliberative proceedings and involved application of the Browning-Ferris facts to the law for the Browning-Ferris parties.” Thus, because Emanuel’s law firm represents a party in Browning-Ferris, the IG concludes that Emanuel should have been recused from the effectively-consolidated case of Hy-Brand.
The IG’s report is full of internal Board emails, and an analysis of the actual Hy-Brand decision, that leaves no room to doubt the conclusion about effective consolidation. Based on this conclusion, the IG writes that “Member Emanuel’s participation in the Hy-Brand decision . . . calls into question the validity of that decision.” Indeed it does. Had Emanuel participated in Browning-Ferris the Board would have no choice but to reconsider its decision. Having concluded that Hy-Brand was nothing more than a “do over” of Browning Ferris, the Board should now reconsider Hy-Brand and withdraw that decision’s joint employer analysis.