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NLRB Joint Employer Decision at Risk?

The Board overturned Browning-Ferris Industries, 362 NLRB No. 186 (2015), in Hy-Brand Industrial Contractors, Ltd., 365 NLRB No. 156 (Dec. 14, 2017), and returned to the more employer-friendly principles governing joint-employer status that existed prior to that decision. Now, however, the five individual Charging Parties in Hy-Brand have filed with the Board a Motion for Reconsideration of its decision. (Browning-Ferris was appealed to the U.S. Court of Appeals for the D.C. Circuit and, pursuant to a motion by the General Counsel, was remanded on December 22, 2017, to the Board for review in light of Hy-Brand.)

Administrative Law Judge Robert A. Ringler found the Charging Parties, former employees, had been terminated in violation of the National Labor Relations Act, and that Hy-Brand and Brandt Construction Co. were single employers and joint employers (using the Browning-Ferris (362 NLRB 186 [2015]) test created by the Obama Board) responsible for the unlawful terminations. Although, on appeal, the Board reversed Browning-Ferris, it found that, even under the Board’s new joint employer analysis, Hy-Brand and Brandt were joint employers responsible for the illegal terminations. Given that finding, the Board concluded it was unnecessary to also decide the single employer issue.

In their motion for reconsideration, the Charging Parties took issue with the Board’s failure to decide the single-employer issue, and asked the Board to strike from its decision references to Browning-Ferris and joint employer status. They argued that, in failing to affirm the single-employer finding, the Board granted the employers, who violated the NLRA, “a potential avenue to escape liability for future damages.” They also objected to the “Board’s use of the Respondent’s unfair labor practice as a vehicle to overturn Browning-Ferris … and thereby to deprive other workers of meaningful protections and effective bargaining.”

The Charging Parties also requested that Board Member William Emanuel recuse himself from participating in the reconsideration because of his “clear conflict of interest” in Browning-Ferris. Emanuel was a shareholder of the law firm that represented the employers in Browning-Ferris.

On January 25, 2018, Counsel for the General Counsel filed a response to the motion, surprisingly taking “no position on” the motion. Then, on January 30, 2018, Teamsters Local 350, the charging party in Browning-Ferris, filed with the Board a Motion to Intervene in the Hy-Brand proceeding to support the Charging Parties’ Motion for Reconsideration. Teamsters Local 350 argues that it has been severely prejudiced by the Board’s failure to give it notice that it was considering overruling Browning-Ferris in Hy-Brand because, in Hy-Brand, the NLRB discussed and expressed a negative opinion about the facts in Browning-Ferris (particularly those involving the “cost-plus” arrangement in the contract between Browning-Ferris and Leadpoint, the supplier employer). According to Teamsters Local 350, this negative discussion in light of Hy-Brand inevitably means that, on remand, the Board will rule against it. Teamsters Local 350 thus contends that it will be severely prejudiced in the litigation of its own case before the Board if it is not allowed to participate in the motion for reconsideration of Hy-Brand.

Teamsters 350 also argues that neither the General Counsel nor the Charging Parties in Hy-Brand can adequately protect its interests. Regarding the General Counsel, Teamsters Local 350 points to the General Counsel’s failure to support the Charging Parties’ Motion for Reconsideration in Hy-Brand and that the General Counsel has acted contrary to its interests in the Browning-Ferris proceeding by moving to remand the case to the Board and opposing its motion to reconsider the remand. Teamsters Local 350 also contends that the Charging Parties in Hy-Brand lack the resources and intimate knowledge of the record in Browning-Ferris to fully protect its interests.

The motion is now before the Board for consideration. The Board had five members and a 3-2 Republican majority when Hy-Brand was decided. Now, the Board is evenly split: two Republicans and two Democrats. (Republican Member Philip Miscimarra’s term expired on December 16.) Adjudication of the motion likely will wait until a fifth member is confirmed by the Senate. President Donald Trump has nominated John Ring, a Republican, to fill the vacant Board seat.

Jackson Lewis P.C. © 2020National Law Review, Volume VIII, Number 33

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About this Author

Chelsea Leyh, Attorney, Jackson Lewis Law Firm
Attorney

Chelsea B. Leyh is an Associate in the Baltimore, Maryland, office of Jackson Lewis P.C.

Ms. Leyh advises employers in labor and employment matters, with a focus on traditional labor issues, union elections, and unfair labor practice charges.

Ms. Leyh has defended companies against unfair labor practice charges and litigation brought by labor unions before the National Labor Relations Board (NLRB) and in labor arbitrations. Ms. Leyh has provided advice to employers faced with union...

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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