HY-BRAND INDUSTRIAL CONTRACTORS, LTD AND BRANDT CONSTRUCTION, CO., SINGLE EMPLOYERS AND/OR JOINT EMP

National Labor Relations Board - Board Decisions

Jun 6, 2018

366 NLRB No. 93 (N.L.R.B. 2018)

366 NLRB No. 93
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Hy-Brand Industrial Contractors, Ltd. and Brandt
Construction Co., as a single employer and/or
Joint Employers and Dakota Upshaw and David
Newcomb and Ron Senteras and Austin
Hovendon and Nicole Pinnick. Cases 25–CA–
163189, 25–CA–163208, 25–CA–163297, 25–CA–
163317, 25–CA–163373, 25–CA–163376, 25–CA–
163398, 25–CA–163414, 25–CA–164941, and 25–
CA–164945
June 6, 2018
ORDER DENYING MOTION FOR
RECONSIDERATION
BY CHAIRMAN RING AND MEMBERS PEARCE,
MCFERRAN, AND KAPLAN
On February 26, 2018, the National Labor Relations
Board issued an Order Vacating Decision and Order and
Granting Motion for Reconsideration in Part in this pro-
ceeding. 366 NLRB No. 26 (Hy-Brand II). That order
partially granted the Charging Parties’ motion for recon-
sideration and vacated the Board’s Decision and Order of
December 14, 2017, reported at 365 NLRB No. 156 (Hy-
Brand I). Respondents Hy-Brand Industrial Contractors,
Ltd. and Brandt Construction Co. have filed a motion for
reconsideration of Hy-Brand II. The Charging Parties
filed an opposition to the Respondents’ motion. The
General Counsel filed a response to the Respondents’
motion, agreeing with the Respondents that Hy-Brand II
should be set aside.
The National Labor Relations Board has delegated its
authority in this matter to a four-member panel.
Having carefully considered the matter, the National
Labor Relations Board denies the Respondents’ motion.1
The Respondents have not identified any material error
or extraordinary circumstances warranting reconsidera-

1 Member Emanuel has been disqualified from participation in this
case and did not participate in either the delegation to the panel or the
decision here. We note that since the issuance of Hy-Brand II, the
Board—pursuant to the Freedom of Information Act—has made public
portions of the written rationale of the Board’s Designated Agency
Ethics Official, in support of her determination with respect to Member
Emanuel’s disqualification and other related information.
The Respondents have argued that Member Pearce should recuse
himself from participating in this case pending investigation of an
allegation that he disclosed confidential, deliberative information con-
cerning the case. The Board’s Inspector General has thoroughly inves-
tigated the matter. He has found no factual support for that allegation
and has closed the investigation.
tion under Section 102.48(d)(1) of the Board’s Rules and
Regulations.
The Respondents contend that the Board failed to
comply with the Government in the Sunshine Act in
connection with Hy-Brand II. Their contention is mis-
taken. The Board issued a timely and proper Sunshine
Act notice. See 83 FR 7239 (Feb. 20, 2018).
The Respondents are also mistaken in contending that
the delegation of authority to a three-member panel in
Hy-Brand II was invalid because Member Emanuel did
not participate in the delegation. As the Board explained
in Hy-Brand II, the “Board’s Designated Agency Ethics
Official (DAEO) has determined that Member Emanuel
is, and should have been, disqualified from participating
in this proceeding.” 366 NLRB No. 26, slip op. at 1.
The Board noted that “5 C.F.R. § 2635.502(c) gives the
Agency’s Designated Agency Ethics Official authority to
‘make an independent determination as to whether a rea-
sonable person with knowledge of the relevant facts
would be likely to question the employee’s impartiality
in the matter.’” Id., slip op. at 1 fn. 3. That same provi-
sion of the Code of Federal Regulations goes on to state
as follows:
If the agency designee determines that the employee's
impartiality is likely to be questioned, he shall then de-
termine . . . whether the employee should be authorized
to participate in the matter. Where the agency designee
determines that the employee's participation should not
be authorized, the employee will be disqualified from
participation in the matter . . . .2
Based on this authority, the DAEO issued a determina-
tion of disqualification. Accordingly, Member Emanuel
was and is disqualified from participating in Hy-Brand,
and the delegation of authority to a three-member panel
in Hy-Brand II was made by all Board members who
were qualified to participate. The Respondents cite no
authority—and we are aware of none—that calls into
question the validity of the delegation in Hy-Brand II in
circumstances such as these.3

2 5 C.F.R. § 2635.502(c) was promulgated by the Director of the Of-
fice of Government Ethics pursuant to the authority granted to the
Director by Congress under Title IV of the Ethics in Government Act
of 1978, as amended, 5 U.S.C. App. 4 § 401 et. seq.
3 The Respondents cite an unpublished order in New Vista Nursing
& Rehabilitation, LLC, 22–CA–029988 (Jan. 5, 2016), in which then-
Chairman Pearce recused himself but participated in the delegation of
authority to the panel. The differences between that case and this one
are apparent. Then-Chairman Pearce recused himself from New Vista,
and he did so in the New Vista order itself. Here, Member Emanuel had
been disqualified from participating in Hy-Brand by the Agency offi-
cial vested with regulatory authority to do so, and this disqualification
occurred before the Board issued Hy-Brand II.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
The remainder of the Respondents’ motion is almost
entirely devoted to criticism of the report issued by the
Board’s Inspector General on February 9, 2018. This
criticism is immaterial. As Hy-Brand II made clear, and
as we have reiterated above, Member Emanuel was dis-
qualified from participating in Hy-Brand by the Agen-
cy’s DAEO, not by its Inspector General. Although the
Board noted the Inspector General’s report in Hy-Brand
II, it relied on the DAEO’s decision to vacate Hy-Brand
I. The Respondents having failed to identify any materi-
al error in Hy-Brand II or to otherwise demonstrate ex-
traordinary circumstances warranting reconsideration of
that decision, their motion for reconsideration is denied.
Dated, Washington, D.C. June 6, 2018
______________________________________
John F. Ring, Chairman
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member
______________________________________
Marvin E. Kaplan, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
CHAIRMAN RING and MEMBER KAPLAN, concurring.
It is not enough that your designs, nay that your ac-
tions, are intrinsically good, you must take care they
shall appear so.
Henry Fielding, Tom Jones (1749)
The National Labor Relations Board prosecutes cases,
conducts elections, issues decisions, and promulgates
rules. This is what the public sees when it looks at the
work we do. What goes unremarked are the ethical un-
derpinnings of this work—unless and until they are
called into question. If and when that occurs, the Board
must act promptly and decisively to ensure that in carry-
ing out its work, it not only adheres to exacting standards
of integrity and impartiality—as, indeed, we believe the
Board did when it decided Hy-Brand I—but that it is
perceived by the public as adhering to such standards.
As the individuals presently entrusted with stewardship
of the Agency’s mission, the Board’s members can do no
less.
Here, after consulting with the Office of Government
Ethics, the Board’s DAEO invoked the regulatory au-
thority cited above and expressly forbid the Board from
allowing Member Emanuel to participate in this case.
There are some who might disagree with the merits of
the DAEO’s determination. And reasonable people can
debate whether the DAEO has the statutory authority to
disqualify a Board Member from a matter. Such a debate
may be carried on outside the Board in the press, at pro-
fessional conferences, perhaps over dinner. But for the
Board as a whole or an individual member to defy what
appears to be clear regulatory authority by refusing to
comply with the DAEO’s determination at best would
have sidetracked the Agency from its mission, and at
worst would have plunged the Board into litigation.
Faced with these circumstances, the Board had no room
in the context of this case to question the DAEO’s de-
termination or her authority to make it.
Stated another way, had the Board’s DAEO merely
advised the Board, as has been done in the past, that in
her opinion, a reasonable person with knowledge of the
relevant facts would question Member Emanuel’s partic-
ipation in Hy-Brand I, the Board’s traditional recusal
practices would have been followed. When the DAEO,
pursuant to the authority she invoked under federal law,
took the unprecedented step of disqualifying Member
Emanuel from participating in Hy-Brand II (and subse-
quent proceedings in the case), the Board had no alterna-
tive but to comply with her directive. To do otherwise—
if that was even possible—would have meant protracted
legal challenges and, more troubling, lasting injury to the
Board’s reputation.
The General Counsel has requested, as alternate relief,
that the Board publish the DAEO’s decision, unredacted,
and grant the motion for reconsideration to permit the
parties to address it. In the General Counsel’s view, the
Board should have given the parties the opportunity to be
heard about the DAEO’s determination in advance of
vacating the Board’s original decision in Hy-Brand I.
Like the General Counsel, we would have been interest-
ed in hearing whether the parties believe that any legal
grounds exist upon which the Board could have rejected
the DAEO’s determination. We have been unable to
locate authority to support such a position. Moreover,
nothing the General Counsel says in his brief suggests
that the DAEO does not have that authority. We agree
with the General Counsel that the alternative procedure
he proposes might afford parties a greater opportunity to
HY-BRAND INDUSTRIAL CONTRACTORS, LTD. 3
demonstrate otherwise.1 However, we do not regard this
argument as showing there was material error in the Hy-
Brand II decision or that “extraordinary circumstances”
warrant granting the motion for reconsideration of that
decision.
Meanwhile, let’s put this matter in perspective. If the
Board erred in any way in Hy-Brand II, it erred on the
side of protecting its reputation for integrity and impar-
tiality. The Board should err on that side, and the reputa-
tion of government would benefit were all its errors simi-
larly well-intentioned. Moreover, while Hy-Brand II was
necessitated by the unusual and unfortunate circumstanc-
es here, the real injustice is that done to the Board’s
stakeholders, who deserve “certainty beforehand as to
when [they] may proceed to reach decisions without fear
of later evaluations labeling [their] conduct an unfair
labor practice” due to misapprehension of the standard
for determining joint-employer status under the Act.2
We could continue to litigate the unique ethics issues
raised by this case for years while America’s workplac-
es—not to mention the seven employees whose dis-
charges are at issue in this case—remain in limbo wait-
ing for us to do our job, or we can move forward. We
choose to move forward.

1 It is worth noting the extraordinary circumstances surrounding the
DAEO’s actions. The ethics pledge taken by Board members requires
that each member be recused for 2 years from any particular matter in
which his or her former law firm represents a party and for 2 years from
any matter involving a client for which the member performed work.
For Member Emanuel, neither of these applied in Hy-Brand, and it is
undisputed that Member Emanuel had no recusal obligation at the
outset of the case. However, after reviewing the manner and form of
the Board’s deliberations in Hy-Brand I, the DAEO concluded that Hy-
Brand should be considered the same particular matter as BFI Newby
Island Recyclery, 362 NLRB No. 186 (2015), a case that was then
pending before the District of Columbia Circuit and from which Mem-
ber Emanuel is recused. This unprecedented recusal determination
seems to go far beyond the stated ethical rules, and it extends the
recusal determination from one that is made based on objective facts
and standards before the member decides whether he or she may partic-
ipate in a case to one that must be continually revisited and may be
revised depending on the way the case proceeds through the delibera-
tive process. And despite no violation of existing ethics requirements
at the outset of Member Emanuel’s participation in Hy-Brand I, the
DAEO concluded that the totality of the circumstances as they unfolded
in the making of the decision in Hy-Brand I created an appearance of
partiality. Based on this extraordinary conclusion, the DAEO took the
equally extraordinary action of disqualifying the Board member from
participating in the case. Undoubtedly, the events of this case are unu-
sual, to say the least. Nevertheless, the DAEO’s actions in Hy-Brand
could have a lasting effect on the members’ recusal requirements, and
they have the potential to be used as a weapon to tie up important cases.
To ensure clarity going forward for all concerned, we believe the Board
should undertake a thorough internal review of its recusal practices and
procedures.
2 First National Maintenance Corp. v. NLRB, 452 U.S. 666, 678–
679 (1981).
Dated, Washington, D.C. June 6, 2018
______________________________________
John F. Ring, Chairman
______________________________________
Marvin E. Kaplan, Member
NATIONAL LABOR RELATIONS BOARD
MEMBERS PEARCE and MCFERRAN, concurring.
Having joined our colleagues in a unanimous decision
rejecting the Respondents’ arguments for reconsideration
of Hy-Brand II, we write separately mainly to address the
surprising decision by the General Counsel to attack the
Board’s reliance on a disqualification determination of
the Designated Agency Ethics Official (DAEO).
Initially, we note that the instant motion for reconsid-
eration comes before the Board in a highly unusual pos-
ture. On December 14, 2017, Hy-Brand I, 365 NLRB
No. 156, overruled BFI Newby Island Recyclery
(Browning-Ferris), 362 NLRB No. 186 (2015), and re-
verted to a prior legal standard for determining whether
two employers are joint employers under the National
Labor Relations Act. Applying that standard, the Board
found that the Respondents were joint employers and
accordingly imposed liability on them for discharging
seven employees in violation of Section 8(a)(1) of the
Act.
The Respondents do not challenge that unfair labor
practice finding now. Instead, they seek reconsideration
of the February 26, 2018 order vacating the finding—an
order from which the Respondents arguably benefit-
tedbecause it provided that as a result of the vacatur of
Hy-Brand I, the “overruling of the Browning-Ferris deci-
sion is of no force or effect.” Hy-Brand II, 366 NLRB
No. 26, slip op. at 1. The Respondents’ present focus,
then, is not with the imposition of joint-employer liabil-
ity on them, but rather with the restoration of the Brown-
ing-Ferris standard, which has had no legal consequenc-
es for the Respondents.
But perhaps even more unusual than the Respondents’
approach to this litigation is the manner and means by
which the General Counsel has chosen to engage in this
proceeding. While the General Counsel’s duty in this
case would presumably be to defend the interests of the
seven discharged parties whose rights were allegedly
violated, instead the General Counsel’s belated participa-
tion in the litigation of this motion is inexplicably fo-
cused on questioning the authority of the Board’s Desig-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
nated Agency Ethics Official, and the Board Members’
obligation to comply with the Standards of Ethical Con-
duct for Executive Branch Employees, the President’s
Ethics Pledge, and the DAEO’s authoritative, regulatory
determinations. These propositions should not be con-
troversial.
We believe it is beyond question that the DAEO had
independent authority to disqualify Member Emanuel
and that the Board, in turn, appropriately vacated Hy-
Brand I based on the DAEO’s determination that Mem-
ber Emanuel should not have participated in that deci-
sion.
We begin by noting that the National Labor Relations
Board, comprising the Board and the General Counsel, is
one agency with a single government-ethics regime, ap-
plicable to Board and General Counsel alike and admin-
istered by the DAEO. The DAEO’s determination, one
would hope, would be entitled to the same deference
from the General Counsel as it has received from the
Board. Certainly, the DAEO’s determination is not a
matter to be litigated by the General Counsel and adjudi-
cated by the Board.
In our view, there is no basis for the General Counsel’s
claim that the Board’s reliance on the DAEO’s determi-
nation violated due process. A litigant has no due-
process right to the participation of a particular Board
member—much less a disqualified Board member—
where a case can be decided by a lawful quorum of
Board members who are themselves eligible to partici-
pate. Cf. Hampton v. City of Chicago, 643 F.2d 478, 479
(7th Cir. 1981) (rejecting challenge to district judge’s
recusal order) (“While plaintiffs have a right to have their
claim heard by the district court, they have no protectable
interest in the continued exercise of jurisdiction by a par-
ticular judge.”). Here, the Charging Parties filed a timely
motion for reconsideration of the Board’s original Hy-
Brand decision, citing Member Emanuel’s participation.
Both the Respondents and the General Counsel had the
full and fair opportunity to respond to the motion, which
they did. The General Counsel explicitly took no posi-
tion in his filing with the Board.
The General Counsel insists now that he was entitled
to “timely notice of the Board’s intention to involve the
DAEO in this matter,” echoing the Respondents’ mistak-
en contention that in the circumstances of this case the
“recusal issue [was] committed to the discretion of
Member Emanuel.”1 However, Hy-Brand II was decided
after the DAEO’s determination of disqualification.
Member Emanuel had no discretion with respect to

1 The General Counsel’s Response to the Respondent’s [sic] motion
for reconsideration of the Board’s Order Vacating Decision and Order
at p. 7.
recusal, once the DAEO, exercising her proper authority,
determined that he was disqualified, and the Board had
no duty to permit his participation in the wake of his dis-
qualification, even if Member Emanuel had sought to
participate. Indeed, the Board’s duty was quite the con-
trary. As the General Counsel—who notes that he “is a
Presidential appointee himself”—is well aware, the
Board was required to act in accordance with the
DAEO’s determination.2
We also reject the argument advanced by the General
Counsel that some “rule of necessity” required Member
Emanuel to participate in the original Hy-Brand decision.
At the time the decision issued, the Board had five mem-
bers. Three members constitute a lawful quorum of the
Board under Section 3(b) of the Act, which provides that
the “Board is authorized to delegate to any group of three
or more members any or all of the powers which it may
itself exercise” and that “three members of the Board
shall, at all times, constitute a quorum of the Board.” 29
U.S.C. §153(b). The General Counsel reasons that be-
cause the original Hy-Brand decision overruled prior
Board precedent by a 3–2 vote, and because Board cus-
tom is to overrule precedent only with three votes (or
more) in favor, Member Emanuel could not have recused
himself if the case were to be decided. The Board would
have had a lawful quorum to decide Hy-Brand even
without Member Emanuel’s participation—any three, or
all four remaining Members could have participated—
and the Board could even have reversed precedent, had
three members agreed to do so.
Finally, there is no basis for the contention (made by
the Respondents and echoed by the General Counsel)
that Member Emanuel had some right to rule on the
recusal issue—and that the Board had a corresponding
duty to defer to his ruling—in the wake of the DAEO’s
determination. The Board’s Designated Agency Ethics
Official, exercising her regulatory authority under 5
C.F.R. §2635.502(c), determined that Member Emanuel
was disqualified from participating in the matter, and the
Board subsequently acted in accordance with the
DAEO’s determination. Member Emanuel, who is sub-
ject to the President’s Ethics Pledge and to the Standards
of Ethical Conduct for Executive Branch Employees, is
required to abide by the DAEO’s determination. While
the Respondents cite cases where Board Members ad-
dressed motions regarding their own recusal, in no case

2 We also reject the General Counsel’s suggestion that because it
vacated a full-Board decision, Hy-Brand II required full-Board partici-
pation—including Member Emanuel. That suggestion begs the ques-
tion of Member Emanuel’s disqualification and ignores the fact that
three Board members (all members eligible to participate) voted unan-
imously to vacate the original Hy-Brand decision.
HY-BRAND INDUSTRIAL CONTRACTORS, LTD. 5
cited by the Respondents was there a prior determination
by the Agency’s DAEO disqualifying the member from
participating in the matter.3 In those circumstances, the
Board is precluded from including the disqualified Board
member in deliberations. Permitting participation by a
disqualified member would have ethical implications for
the remaining Board members and would risk invalidat-
ing the Board’s substantive decision on judicial review.4

3 Indeed, in one case cited by the Respondents, Member Becker’s
statement addressing recusal explained that he had consulted the DAEO
and, in declining to recuse himself, he was acting consistently with the
guidance that he had received. Service Employees Local 121RN (Po-
mona Valley Hospital Medical Center), 355 NLRB 234, 243 (2010)
(statement of Member Becker). It is reasonable to infer that in other
cases in which Board members have explained why they were not
recused, the member’s decision to participate was informed by prior
consultation with the DAEO, even if no reference to the DAEO was
made.
4 See Berkshire Employees Assn. of Berkshire Knitting Mills v.
NLRB, 121 F.2d 235 (3rd Cir. 1941) (remanding case in light of allega-
tion that Board member was not impartial). See generally Marshall J.
Breger & Gary J. Edles, Established by Practice: The Theory and Op-
eration of Independent Federal Agencies, 52 Admin. L. Rev. 1111,
1196 (2000). Breger and Edles observe that “[i]t is not entirely clear if
multi-member agencies have a collegial obligation to evaluate one of
their members to determine if he or she should be disqualified from a
proceeding,” but they note that “permitting a ‘biased’ agency member
to participate in a case can clearly call the agency’s substantive deci-
sion into question.” Id. We note that some independent multi-member
agencies, such as the Federal Trade Commission, have promulgated
rules explicitly providing that the agency—not simply the individual
member—will address motions to disqualify a member. See 16 C.F.R.
§4.17 (FTC rule). See, e.g., Intel Corp., 149 FTC 1548 (2009) (opinion
and order denying motion for disqualification).
The Board’s own rules do not seem to address the question of dis-
qualification of a Board Member, as opposed to an administrative law
judge. See Board’s Rules and Regulations Sec. 102.37 (disqualification
of administrative law judges). There are older Board cases where the
Dated, Washington, D.C. June 6, 2018
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member
NATIONAL LABOR RELATIONS BOARD

Board itself has addressed a Member-disqualification motion, some-
times after the Member had addressed it. See, e.g., Greater Bakersfield
Memorial Hospital, 226 NLRB 971, 971 fn. 2 (1976); St. Joseph Hos-
pital, 224 NLRB 270, 270 fn. 1 (1976); West India Fruit & Steamship
Co., Inc., 130 NLRB 343, 345 fn. 6 (1961); Columbia Pictures Corp.,
85 NLRB 1085, 1086 fn. 6 (1949). The Board has also referred a dis-
qualification motion to the Member in question and permitted him to
address it, without itself doing so. See, e.g., Robbins Motor Transpor-
tation, 225 NLRB 761, 761 fn. 1 (1975). In other, mainly more recent
cases, only the individual Member has addressed the disqualification
motion, with no indication that the Board itself considered the matter or
took other action. See, e.g., Regency Heritage Nursing & Rehabilita-
tion Center, 360 NLRB 794, 794 fn. 1 (2014) (Member Hirozawa,
ruling on request); Service Employees Local 121RN (Pomona Valley
Hospital Medical Center), 355 NLRB 234, 238–246 (2010) (Member
Becker, ruling on motions); Overnite Transportation Co., 329 NLRB
990, 998 (1999) (statement of Member Liebman); Caterpillar, Inc., 321
NLRB 1130, 1132 (1996) (statement of Chairman Gould); Cedars-
Sinai Medical Center, 224 NLRB 626, 626 (1976) (Member Walther,
concurring). Finally, the Board has sometimes denied a disqualification
motion based on an individual Member’s prior decision not to recuse
himself. See, e.g., Los Angeles Times Communications, 357 NLRB
645, 645 fn. 2 (2011); Regency Grande Nursing & Rehabilitation Cen-
ter, 355 NLRB 577, 577 fn. 2 (2010).