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The board’s Democrat majority in 2015 used Browning-Ferris to expand joint employer liability to include situations in which a business exerts indirect control over workers. A Republican-majority board in December used Hy-Brand to overturn that decision and return to a more limited “direct-control” standard for joint employer liability. Berry later said Emanuel should have sat out Hy-Brand because his former law firm—Littler Mendelson—represented a subcontractor involved in Browning-Ferris. Emanuel shouldn’t have joined the board in urging the agency’s general counsel to ask an appeals court to drop its consideration of the Browning-Ferris case, the inspector general also said . Pearce, NLRB Chairman Marvin Kaplan (R), and Member Lauren McFerran (D) decided to scrap the Hy-Brand decision shortly after Berry’s first report became public. Lawyers for Hy-Brand said the board violated federal law by keeping Emanuel out of the loop on the move. They also accused Pearce of spilling the beans about the decision before it was made public. Pearce’s alleged comments are too vague to pose a serious problem for him, said University of Wyoming law professor Michael Duff, a former NLRB attorney. The political sensitivity of the Hy-Brand issue might be sufficient alone to cause the inspector general to go out of his way to look into any allegations brought relating to it, Duff said. But what Pearce is being accused of saying—that there was a “big decision” of some sort coming on the Hy-Brand case—could have been expected by anyone watching the case and the ethics investigation, he said. “Do I think it’s a big deal? Not on those facts, I don’t,” said Duff.
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