Last month the National Labor Relations Board (NLRB) made headlines when it vacated a decision from December 2017– the Hy-Brand case – that overruled its infamous Browning-Ferris decision regarding joint-employment under the National Labor Relations Act (NLRA). That action reinstated the more lax standard under Browning-Ferris for finding joint-employment. The board ruled that current Member Emanuel should not have participated in Hy-Brand in light of the fact that his former law firm was involved in the Browning-Ferris case and the Hy-Brand decision impacted the pending appeal of Browning-Ferris in federal court. In other words, Emanuel potentially had a “conflict of interest.”
Will similar conflict allegations rear their heads again and put NLRB actions in jeopardy? It appears that may be the case. Bloomberg is reporting that a union is requesting the board vacate its Boeing decision – also from December 2017 – that significantly altered the way the agency will be evaluating the legality of employer personnel policies under the NLRA. The union’s request is premised on the fact that Emanuel’s former law firm purportedly has represented Boeing in other matters, thus presenting a potentially similar conflict issue to the one that was found in the Hy-Brand case. We’ll see if that argument gains any traction.
In addition, recent NLRB nominee John Ring faced intense questioning from Senators about his private practice and his potential ability to steer clear of conflict issues at the board. This is all very interesting given former President Obama NLRB-appointee Craig Becker notoriously refused to recuse himself in cases involving a union he previously represented. Nevertheless, in light of these developments, the conflicts of interest arguments being raised at the agency now remain an important issue to watch.