Education and Labor Committee subpoenas NLRB

By Rebecca Rainey 09/15/2020 03:03 PM EDT

House Democrats are subpoenaing the National Labor Relations Board for documents related to alleged conflicts of interest in an unfair labor practice case involving McDonald’s, the latest escalation in a 18-month ethics dispute.

The House Education and Labor Committee was to issue a subpoena Tuesday seeking documents from the board’s ethics official that cleared member William Emanuel to participate in a $172,000 settlement with McDonald’s — even though Emanuel’s former law firm, Littler Mendelson, established a hotline for franchisees regarding the legal issues before the agency in the case.

Chair Bobby Scott (D-Va.) also wants to see the ethics official’s determination that allowed board members to participate in the agency’s rulemaking on joint employment and the instructions provided to contractors who sorted public comments on the proposal, according to a committee aide.

In a letter to the NLRB on Sept. 1, Scott said that despite his requests, the board said it would not comply “short of a court order.”

“The Committee is left to conclude that the NLRB will not produce documents because they substantiate allegations of misconduct,” Scott wrote. “The only facts the Committee has to consider, at this point, are those that are publicly available, which reveal processes tainted with conflicts of interest and prejudicial error.”

The Trump administration called the subpoena “unprecedented” and argued the documents “have always been protected from disclosure.”

“The subpoena seeks confidential and deliberative documents prepared by agency employees to advise the Board on case handling and rulemaking,” the agency said in a statement.

Background: Clarifying which businesses are considered “joint employers” that are liable for labor violations committed by their franchisees and contractors has been a priority for the Trump NLRB.

The issue was the center of a political firestorm at the board in 2017, when the NLRB attempted to reverse the broader Obama-era joint employment standard in a ruling in a case called Hy-Brand. That ruling was later vacated after the agency’s inspector general concluded that Emanuel should have recused himself from the decision because Littler Mendelson had participated in a related lawsuit.

The Trump NLRB then proceeded to issue a business-friendly joint employer rulemaking that made it harder for franchisers to be held liable for labor violations committed by franchisees and contractors, reverting to an earlier precedent that preceded President Barack Obama.

The Education and Labor Committee is seeking the board’s ethics official’s determination that allowed Emanual to participate in that rulemaking.page1image18407104page1image18406912page1image18406720page1image18406528page1image18408640page1image18407488page1image18409024

Democrats have also raised concerns over the board’s use of a contractor, Ardelle Associates, to categorize comments filed in the joint employer rulemaking. Scott argued in the Sept. 1 letter that contracting out “inherently governmental functions” violated the Federal Activities Inventory Reform Act of 1998 and also raised concern that Ardelle Associates was a member of two organizations that filed comments in the rulemaking.

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