D.C. Circuit to Consider Once Again the NLRB’s Browning-Ferris Joint Employer Standard

“Extraordinary Circumstances” Justify Consideration of the Appeal After 2017 Remand to the NLRB April 12, 2018
There has been a new twist in the long-running legal battle over the NLRB’s joint employer standard. On April 6, the D.C. Circuit reinstated to its docket an appeal brought by waste management company Browning-Ferris Industries that challenged the NLRB’s 2015 decision in Browning-Ferris Industries, 362 NLRB 186 (2015). The D.C. Circuit held that “extraordinary circumstances” justified the appeal’s revival; however, the court stayed its consideration of the appeal pending the NLRB’s decision with respect to a related matter, Hy-Brand, which is described below.

The history of the two joint-employer decisions is as follows:
  • In 2015, the NLRB decided Browning-Ferris Industries. The decision abandoned the Board’s long-standing test that an entity must both possess and exercise direct control over employees’ terms and conditions of employment in order to be considered a joint employer. Instead, the Board held that, “to better effectuate the purposes of the [National Labor Relations Act] in the current economic landscape,” it would consider whether an employer has exercised control over terms and conditions of employment indirectly through an intermediary, or whether it has reserved the authority to do so. You can read our memorandum on the Browning-Ferris decision here. Browning-Ferris appealed the decision to the D.C. Circuit. 
  • While Browning-Ferris’ appeal was pending, a newly recomposed NLRB decided Hy-Brand Industrial Contractors, Ltd. et al., 362 NLRB 186 (2017), which overturned Browning-Ferris. You can read our blog post on the December 14 Hy-Brand decision here. On December 22, at the NLRB’s request, the D.C. Circuit remanded Browning-Ferris’ appeal to the agency.
  • Then, on February 26, 2018, the NLRB vacated its decision in Hy-Brand, thus reinstating the Browning-Ferris standard. The NLRB Inspector General concluded that Board Member William Emanuel should not have cast a vote in the decision because his former law firm had represented one of the unsuccessful litigants in Browning-Ferris. Emanuel had voted with the 3-2 majority. You can read our blog post on the Hy-Brand vacatur here
  • On March 1, the NLRB asked the D.C. Circuit to reinstate its appeal and restore the case to the docket, which the court did on April 6.
  • Meanwhile, a highly unusual development occurred in the Hy-Brand matter. On April 5, the NLRB’s General Counsel’s office filed a brief in support of Hy-Brand Industrials’ motion for reconsideration. Patricia McGruder, counsel in the office of General Counsel Peter Robb, argued in the motion that the Board should have “allow[ed] Member Emanuel to make his own recusal determination in the first instance” and that it was “a seemingly unique event in board history” for the other Board members to “decide[] on their own to disqualify [Board Member Emanuel] from participating in the case.”