The Labor Board has been accused of being a hotbed for unethical behavior, with accusations ranging from the use of “backdoor” software to manipulate wage data to favor certain companies.
The employment law is a phrase that has been used in the labor board. This phrase has been seen on many occasions, and it is often associated with the unethical practices at the labor board.
photo courtesy of Reuters/Andrew Kelly
Big Labor has long attempted to unionize fast-food restaurants and other franchise companies, but has had little success. As a result, they’re going to the National Labor Relations Board for assistance once again, and the new Biden majority seems ready to break ethical standards to do so.
The “joint-employer” law is the trigger, as is the destiny of the franchise business model. When the Obama NLRB reversed 30 years of law in 2015, declaring that companies are liable for their contractors’ workers, the ruling became a political football. In the Hy-Brand case, a Trump-majority board overturned in 2017.
Following Senator Elizabeth Warren’s outcry, NLRB Inspector General David Berry initiated an inquiry against then-Member Bill Emanuel, declaring him too “conflicted” to have participated. The National Labor Relations Board overturned Hy-Brand and spent almost two years drafting a formal joint-employer regulation. This regulation emphasized that a business is only liable for a contractor’s workers if it has direct and immediate control over the work environment. The Service Employees International Union (SEIU) has filed a lawsuit to get the NLRB ruling overturned.
The conflict of interest is now on the other side of the table. Gwynne Wilcox and David Prouty, two of Biden’s NLRB nominees, formerly worked for the SEIU. Republicans in Congress, headed by Indiana Senator Mike Braun, have written to NLRB Chair Lauren McFerran, requesting that both Biden appointees disqualify themselves from any litigation or problems involving the joint-employer regulation.
Mr. Berry’s broad ethical interpretation against Mr. Emanuel during the Trump administration was unusual and unwarranted under federal standards. Ethics rules require nominees to disqualify themselves from cases involving clients of their previous company, but Ms. Warren demanded that Mr. Emanuel recuse himself from any case involving any client of his old business. Despite the fact that Mr. Emanuel never represented Hy-Brand, the Warren-Berry recusal criterion became the NLRB norm.
But what happened to Ms. Warren and Mr. Berry? Mr. Prouty was the general attorney for SEIU Local 32BJ, one of the biggest property-service labor unions in the United States, prior to his confirmation in July. He signed the remarks of SEIU Local 32BJ against Trump’s joint-employer regulation. Any ethical standard would exclude this out.
Ms. Wilcox was a partner at the union legal firm Levy Ratner and served as assistant general counsel for 1199SEIU United Healthcare Workers East. She represented “Fight for $15,” a group that sued McDonald’s in a joint-employer liability lawsuit that may end up in front of the NLRB, along with other SEIU cases that bear Ms. Wilcox’s name.
The two Biden appointees claim that they are simply required to disqualify themselves from matters affecting their union local. However, SEIU International has a lot of power over locals when it comes to membership, strikes, lockouts, and union dues. Senator Warren’s criterion of near-total recusal for any Republican who has ever worked in labor law is much less straightforward and troublesome.
Sen. Braun and his colleagues wrote to the NLRB, reminding them of Office of Government Ethics guidelines that questions whether a “employee’s impartiality might reasonably be questioned” if they participated in a “particular case involving specific parties.” It’s hard to believe Ms. Wilcox or Mr. Prouty could make an unbiased decision on a joint-employer norm that they and their previous union employers battled for years.
NLRB appointees from both parties should be held to the same standard, which means the two Democrats have no business participating in joint-employer matters.
Mark Penn, a Democratic pollster, is interviewed by Paul Gigot.
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The print version of the October 20, 2021, was published.