The NLRB's General Counsel is ripping the Board for denying litigants' due process rights and deviating from long-held practice by ex post facto disqualifying Member Emanuel from voting on the second round of the Hy-Brand case. The GC dropped its little bomb on April 5 - a brief in opposition to reconsideration of the Board's order which vacated the original Hy-Brand decision [PDF].
In December 2017 the Board, with Emanuel's participation, decided Hy-Brand Industrial Contractors, Ltd. (Hy-Brand I), 365 NLRB No. 156 (2017) [PDF], which overruled Browning-Ferris Industries, 362 NLRB No. 186 (Aug. 27, 2015). This changed the rules for determining when a company is considered a "joint employer." Hy-Brand I adopted a "direct control" test rather than Browning-Ferris' "indirect control" test.
Then in February three Members (not including Emanuel) vacated Hy-Brand I, having decided that Emanuel ought not to have participated. Hy-Brand Industrial Contractors, Ltd. (Hy-Brand II), 366 NLRB No. 26 (2018) [PDF]. It's pretty clear that Emanuel was blind-sided by this action.
The GC now wants the Board to set aside Hy-Brand II, basically for the following reasons:
1. Emanuel should have been allowed to rule on the motion for his recusal. That's been the long-standing practice at the NLRB and at other agencies.
2. It was not proper for three Board Members to vacate a decision that was made by five Members, especially when the Board had four Members.
3. Arguably, Emanuel had a right to sit on the Hy-Brand II case.
4. The Board violated the parties' due process rights, essentially because they were not given notice and an opportunity to respond to the Board's plan to vacate Hy-Brand I.
How will all this end? There's no way to tell. For right now we're seeing some pretty hot words being thrown by a Republican General Counsel toward Republican Board Members.