May 30, 2018

Warren, Sanders, Gillibrand Urge NLRB Not to Circumvent Ethics Restrictions through Rulemaking on Joint-Employer Standard

Senators Concerned Board Will Use Rulemaking to Undermine Workers' Rights, Further Damage Board's Credibility

Text of the letter (PDF)

Washington, DC - United States Senator Elizabeth Warren (D-Mass.), along with Senators Bernie Sanders (I-Vt.) and Kirsten Gillibrand (D-N.Y.), sent a letter to John Ring, Chairman of the National Labor Relations Board (NLRB), to express concern with Ring's announcement that the Board may issue a regulation that would undermine labor rights clarified by Browning-Ferris, an important 2015 decision ensuring that workers could bargain with employers that have indirect control over their wages and working conditions.  The Board's decision to potentially begin a rulemaking process on the joint-employer standard comes after its Hy-Brand decision, which reversed the joint-employer standard that the Board articulated in Browning-Ferris, was vacated due to Board Member William Emanuel's participation in the case, which violated federal ethics requirements.

The NLRB's Browning-Ferris decision reaffirmed that, under the National Labor Relations Act (NLRA), corporations with indirect control or reserved authority over working conditions can be held accountable for violating their rights.  Last year, the Board tried to reverse this ruling through a rushed adjudication process, but later vacated the reversal because the Inspector General and the Board's Designated Agency Ethics Official both determined that Mr. Emanuel's participation violated federal ethics rules.  The Board's decision to vacate the reversal followed a series of letters led by Senator Warren and Senator Patty Murray (D-Wash.) regarding Mr. Emanuel's conflicts of interest.

In their letter to Chairman Ring, the senators expressed concern that the Board will attempt to overturn Browning-Ferris by rulemaking in order to circumvent the ethics restrictions that apply to adjudications.  "While there is nothing inherently suspect about an agency proceeding by rulemaking, it is impossible to ignore the timing of this announcement, which comes just a few months after the Board tried and failed to overturn Browning-Ferris, and appears designed to evade the ethical constraints that federal law imposes on Members in adjudications," the senators wrote.  

The senators also pushed back on claims by Chairman Ring that the Board's decision to begin rulemaking on the joint-employer standard would reduce uncertainty, and warned that this decision may further tarnish the credibility of the Board.  "While it is hard to see how such an action could reduce uncertainty, it is very easy to understand how it appeases corporate interests desperately seeking to escape liability under Browning-Ferris and suppress their workers' efforts to organize," the senators continued.  "Reinstating the tainted Hy-Brand standard through rulemaking would sweep significant conflict-of-interest concerns raised by multiple independent, non-partisan officials under the rug and further damage the Board's reputation."

The senators' letter strongly urged Chairman Ring to reconsider his decision and refrain from initiating a rulemaking process on the joint-employer standard.