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Browning-Ferris Back in the Spotlight … and at the Court of Appeals?

The drama involving the National Labor Relations Board’s precedent-busting 2015 joint employer decision continues.

Browning-Ferris Industries of California, Inc., 362 NLRB No. 186 (2015), dramatically changed the playing field for employers who rely on nontraditional workforces. The NLRB transformed its prior joint employment standard in Browning-Ferris into a two-part test that permits a finding of joint employer where “control” is direct, indirect, or even a reserved right to control, whether or not that right is ever exercised.

As with any hotly contested decision, the parties appealed Browning-Ferris to the U.S. Court of Appeals for the District of Columbia Circuit and participated in oral argument on March 9, 2017. However, before the Court of Appeals could issue a decision, the Board handed down Hy-Brand Industrial Contractors, Ltd., 365 NLRB No. 156 (Dec. 14, 2017), which expressly overruled Browning-Ferris.

Five days after issuing Hy-Brand, the Board petitioned the Court of Appeals to remand Browning-Ferris to the Board for reconsideration in light of its new precedent. The Court granted the Board’s request the same day. On January 4, 2018, Intervenor, Teamsters Local 350 asked the Court to reconsider its decision to remand, raising procedural arguments, and asserting that Board Member William Emanuel should have recused himself from the Hy-Brand decision because his former law firm represented one of the employers involved in the Browning-Ferris proceedings. The Court denied the Teamster’s Motion without comment. Most Board watchers thought that would be the end of the Browning-Ferris litigation.

Wrong.

On February 26, a three-member Board panel consisting of Chairman Marvin Kaplan and Members Lauren McFerran and Mark Gaston Pearce, vacated Hy-Brand based on a report issued by the NLRB’s Inspector General finding that Emanuel should have recused himself from participation in deciding Hy-Brand. The Order resulted in “the overruling of the Browning-Ferris decision . . . [being] . . . of no force or effect.”

Now that Browning-Ferris lives again, the Board has asked the Court to reconsider it.

It is widely anticipated that the Court will grant the Board’s request and reconsider the merits of the Browning-Ferris appeal; however, while less likely, the Court may issue a decision on Browning-Ferris soon. Once fully constituted with a Republican majority, the Board inevitably will overturn Browning-Ferris again and trigger another request to remand Browning-Ferris to the Board.

Jackson Lewis P.C. © 2018

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About this Author

Kathleen M. Tinnerello, Jackson Lewis, Cleveland, Labor Rights Lawyer, Employment Litigation Attorney
Associate

Kathleen M. Tinnerello is an Associate in the Cleveland, Ohio office of Jackson Lewis P.C. Ms. Tinnerello brings a common sense approach to the practice of law, giving thoughtful advice that promotes her clients’ goals and protects her clients’ interests.

Serving as a counselor and advocate for employers in the private and public sector, Ms. Tinnerello represents employers in state and federal courts, as well as before the Equal Employment Opportunity Commission, the Ohio Civil Rights Commission, the National Labor Relations Board, the State Employment...

216-750-4335
Howard Bloom, Jackson Lewis, labor union attorney, unfair practice investigations lawyer, employment legal counsel, bargaining law
Principal

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification campaigns. He also represents clients at the National Labor Relations Board in connection with bargaining unit issues, objections and challenges, as well as unfair labor practice investigations and trials. Mr. Bloom also has been the spokesperson at countless first and successor contract collective bargaining negotiations, and regularly advises on collective bargaining agreement administration issues, including grievance/arbitration issues.

Mr. Bloom has appeared before the Massachusetts Supreme Judicial Court, the U.S. Court of Appeals for the District of Columbia, several U.S. District Courts, the National Labor Relations Board, the Massachusetts Labor Relations Commission, the Equal Employment Opportunity Commission and the Massachusetts Commission Against Discrimination.

617-367-0025
Philip B. Rosen Jackson Lewis  Preventive Practices Lawyer & Collective Bargaining Attorney
Principal

Philip B. Rosen is a Principal in the New York City, New York, office of Jackson Lewis P.C. He is a member of the firm's Board of Directors and co-leads the firm's Labor and Preventive Practices Group. He joined the firm in 1979 and served as Managing Partner of the New York City office from 1989 to 2009.

Mr. Rosen lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media, reorganizations and reductions-...

212-545-4000