by Phil Wilson
“What, me worry?”
For some reason following the high drama over the NLRB’s recent Hy-Brand decision keeps reminding me of one of my guilty pleasures as a kid: MAD Magazine. Remember MAD? Its cover always features (yeah, it’s still in print… I was surprised too) Alfred E. Neuman, a goofy gap-toothed guy spoofing some current event. It’s “theme” (if you can really say there is a theme) is to question everything, especially authority. From the movies we watch, to our music, to our politics, MAD calls attention to the absurdity and fakeness of the world around us. It will loudly proclaim that you should never trust the media – then immediately remind you that they are part of the media. I’d sum up it’s message like this: ALWAYS look for the wizard behind the curtain. If you haven’t been following the unfolding drama around the NLRB’s recent Hy-Brand decision you could benefit a lot by looking at it as a MAD Magazine story. It is full of absurdity, fakeness, and to make any sense of it you have to look for the wizard behind the curtain. A lot’s happened this month, so let me catch you up in case you haven’t followed this close. Last December in Hy-Brand the NLRB overruled the controversial BFI decision. You’ll recall that BFI exploded the idea of “joint employer” to include any situation where a contracting employer reserves a right of control over a contractor instead of requiring direct control. BFI destroyed the traditional concept of separation between a contractor and contracting employer. The wizard behind the BFI curtain was David Weil. BFI was part of a coordinated attack against contracting relationships in the last administration. Following the playbook from Weil’s Fissured Workplace, the Department of Labor and the NLRB went after contractor relationships with a vengeance. This includes the massive litigation against McDonald’s (hopefully going away soon) whose goal is nothing short of destroying the franchise business model. Other contracting relationships are also under attack using this strategy. Everything from the use of temporary workers to freelance or other innovative “gig economy” services (like Uber and AirBnB) are at stake. Which leads us to Hy-Brand. Democrats today are playing a version of the “Four Corners Offense.” That basketball offense, popularized and perfected by Dean Smith, was really more of a defense. You ran it by posting players in the four corners of the basketball court and then starting a giant game of keep-away. This made it virtually impossible for an opponent to get the ball and really do much of anything during a game. It took opponents out of their rhythm and game plan. It was so effective and maddening for opponents (and fans) that they outlawed it by adding a shot clock and 3-point line in basketball. That is the same offense being run by Democrats in the Senate and at the NLRB. They are banking on a big shift in the congressional landscape in 2018 and then hoping for another shift in administrations in 2020. They are running the Four Corners by stalling every agency appointment they can. They are slow-playing decisions. And now they are playing the ethics card in Hy-Brand. Right after Hy-Brand was decided the NLRB dropped back to 4 members, 2 Republicans and 2 Democrats. Therefore nothing of substance can be done while we wait (again) for a third Republican Board member. Four corners. Next came the claim that Member Emanuel should have recused himself from Hy-Brand. This was a total head-scratcher. Emanuel never represented any of the parties in Hy-Brand. His old firm hadn’t either. The claim was that since his old firm was involved (tangentially) in the BFI decision that he was somehow precluded from deciding a case involving the law of the BFI case. Four corners. It’s hard to imagine the wizard behind the curtain could have dreamed that this next part would actually work out like it did. The recusal claim triggered an Inspector General investigation which took on a life of its own. The Inspector General, in an unprecedented (and very suspect) decision, decided Emanuel was issue-precluded from participating in a decision overruling BFI. This astounding opinion – if allowed to stand – essentially means Board members can be precluded from ruling on issues their prior firms litigated. It basically takes them off the playing field for most significant issues. Four corners. Even worse, the three remaining members of the NLRB (including, surprisingly, Republican Chairman Kaplan) called a secret Board meeting to reconsider Hy-Brand. They did this without any notice to Member Emanuel and probably in violation of the Sunshine Act. They then adopted the analysis of the Inspector General and overruled Hy-Brand. Four corners. Finally, in a scene straight out of MAD Magazine’s long-running series Spy vs. Spy, the Board issued its new opinion in Hy-Brand while 3 of the Board members (Emanuel, Pearce and McFerran) were all in San Juan Puerto Rico presenting to members of the American Bar Association’s Labor and Employment Law section. Emanuel – who is the walking embodiment of the word gentleman – was sneak-attacked by his “colleagues” at the Board. The timing could not have been accidental, which makes it even more outrageous. Four corners. This entire drama continues to play out, but if you haven’t read the brief in favor of reconsideration of Hy-Brand you should. Bottom line: don’t start an ethics investigation with unclean hands. And there are a lot of questionable ethical decisions surrounding this reconsideration. The Inspector General’s report was leaked to Senators. Fingers are pointing to the offices of Members Pearce and McFerran, and the Inspector General. And what conversations led to the decision to eliminate Member Emanuel from the decision to reconsider Hy-Brand (with no opportunity to object or provide his reasons against recusal)? The four corners offense is the perfect Democrat strategy and if I was just watching this as a political scientist I’d have to applaud. But watching it as a participant is difficult. Bill Emanuel’s treatment by his colleagues is shameful. There is no reasonable reading of the ethics rules that require his recusal in Hy-Brand. That will eventually be clear. In the mean time keep your eye on the wizard behind the curtain. Unlike Alfred E. Neuman, I am worried.
