Trump NLRB Should Reinstate Its Joint Employer Decision, Says Wall Street Journal Editorial

May 18, 2018

A Wall Street Journal editorial urges National Labor Relations Board Chairman John Ring to ignore certain “phony ethics charges” and return to a standard that would require an employer to have direct and immediate control over the employment terms of another company's employees for joint employer liability to be established.

The Board initially reversed, but then reinstated, the broad Obama-era joint employer standard in Browning-Ferris because of a controversial Inspector General (IG) report regarding recusal issues with Board member Bill Emanuel.

New evidence raises serious questions about whether the NLRB’s Inspector General asked the agency’s ethics officer to “stand down and change her opinion” about member Emanuel’s responsibility to recuse himself from the Hy-Brand decision, according to the Wall Street Journal.

NLRB General Counsel Peter Robb and Hy-Brand have filed motions supporting Mr. Emanuel that ask the board to reconsider the Hy-Brand decision, arguing that the IG’s determination is unprecedented, and the three-member panel “abrogated its responsibility to consider whether the IG Report was erroneous, valid, or should be returned for further investigation.”

Why it matters:  According to the Wall Street Journal, the NLRB IG is effectively “weaponizing” the agency’s ethics rules to protect the Obama joint-employer standard and would require all future NLRB members to recuse themselves from any case that involves issues they have previously expressed interest in—a standard that is not applied to federal judges.