Dear Member Emanuel:
We write with regard to your participation in the National Labor Relations Board’s (Board) decision in Hy-Brand Industrial Contractors (Hy-Brand)[1] and the Board’s motions for remand in Browning-Ferris Industries (BFI)[2] and Volkswagen Group of America (Volkswagen).[3] Last week, you provided a determinative vote in Hy-Brand to overturn the Board’s previous decision in BFI, which held that companies with indirect or reserved control of the terms and conditions of employment could be a “joint employer" under the National Labor Relations Act (NLRA). [4]
The Hy-Brand decision represents a low-point for the Board. The Board broke with its long established practice by failing to invite briefs from the public regarding this significant reversal. The Board took this step although the BFI decision itself remains under review by a federal court of appeals. The Board took this action although no party in Hy-Brand sought such a step, and did so in a case involving a single employer that could have been easily resolved on the facts. This decision by you and the two other Republican Members of the Board is a rushed and ill-considered action that will have long-term repercussions for the Board’s reputation as a neutral administrator of the NLRA. This headlong rush to nullify the BFI decision without fair process or consideration of the collateral impact will strip away the NLRA’s protections from millions of workers.
Additionally, we note that Littler Mendelson, the law firm where you were a shareholder until joining the Board less than three months ago, represented one of the parties in both BFI and Volkswagen when they were before the Board.
Accordingly, we request that you provide us the following information by Jan. 12, 2018:
Please contact our staff at John_DElia@help.senate.gov and Kyle.deCant@mail.house.gov if you have any questions about this request. We look forward to hearing from you.
