NLRB Vacates Hy-Brand Decision Returning To BFI Joint-Employer Standard . . . For Now

In December 2017, the National Labor Relations Board (NLRB) issued a number of important decisions prior to the end of then chairman Philip Miscimarra's term. One of those important decisions was Hy-Brand Industrial Contractors, Ltd., 365 NLRB No. 156 (2017). Hy-Brand overturned the Board's controversial decision in Browning-Ferris Industries of California, Inc. d/b/a BFI Newby Island Recyclery, 362 NLRB No. 186 (2015), which imposed new standards for joint-employer determinations. Browning-Ferris was the law of the land for just two years before being overturned by Hy-Brand, and now Hy-Brand has been vacated just two months after it was issued.

Hy-Brand Vacated Due to Ethical Concerns

By order dated February 26, 2018, the NLRB vacated its December 14, 2017, Hy-Brand decision due to questions and concerns regarding the participation of Member William Emanuel in the decision. As a result of the NLRB's order, Browning-Ferris is once again extant Board law. The decision to vacate Hy-Brand was based in part on a report from the NLRB's inspector general determining that because Member Emanuel would have been ethically prohibited from participating in the Browning-Ferris case due to the involvement of his former law firm in that underlying case, he was similarly prohibited from participating in Hy-Brand because it involved the same legal arguments advanced and argued in Browning-Ferris. Importantly, the firm at which Member Emanuel was a shareholder before joining the Board did not represent Browning-Ferris in the underlying case, but rather, another entity involved in the case.

Browning-Ferris Now Heads Back to DC Circuit and Remains Law for Now

The pending challenge to the Browning-Ferris decision will now proceed back to the U.S. Court of Appeals for the District of Columbia Circuit. Meanwhile, the NLRB will await the confirmation of John Ring to bring the Board back to a full complement of five members so it can reevaluate Hy-Brand and thus the holding of Browning-Ferris. Given...

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