Labor Board Back to Five Member Composition – What Obama-Era Precedent Is Next on the Chopping Block?

by Sheppard Mullin Richter & Hampton LLP
Contact

Sheppard Mullin Richter & Hampton LLP

On April 11, 2018, former management lawyer John Ring was confirmed via a 50-48 party-line vote to serve on the five-member National Labor Relations Board (“Board”). Ring will replace Chairman Marvin Kaplan, another member of the Board’s Republican majority appointed by President Trump. Ring’s confirmation sets the stage for undoing many Obama-era rulings that have sparked controversy within the employer community. However, not all Obama-era cases may be fair game.

Joint Employer Test Still In Standstill Despite Republican Controlled Board

In Browning-Ferris Industries, 362 NLRB No. 186 (2015) (“BFI”), the Board overruled decades of precedent and announced a broad definition of “joint employer,” imposing liability and requiring bargaining in situations where a business possesses only potential and indirect control over the employees in question. In Hy-Brand Industrial Contractors Ltd., 365 No. 156 (December 14, 2017) (“Hy-Brand”), the Board’s Republican majority overturned the controversial standard set forth in BFI. However, that decision was vacated on February 27, 2018, due to a report from the Inspector General that Board Member William Emanuel should have been disqualified from participating in the Hy-Brand decision. Littler Mendelson P.C., Emanuel’s former law firm, represented one of the alleged joint employers in BFI when that case was before the Board. The Inspector General found that the deliberations that led to the Hy-Brand ruling were essentially a direct continuation of the BFI case, and thus should have precluded Emanuel’s involvement. In light of the ethics report, the Board exercised its discretion to vacate and set aside the Board’s Hy-Brand decision. Hy-Brand subsequently filed a motion for reconsideration of the Board’s decision, which is still pending before the Board.

Early this month, the D.C. Circuit Court of Appeals recalled its mandate to remand the appeal of BFI to the Board based on extraordinary circumstances. The case will be held in abeyance pending disposition by the Board of Hy-Brand’s pending motion for reconsideration. Thus, if the Board grants the pending motion for reconsideration vacating Hy-Brand, BFI would be in the same posture as it was when the Court of Appeals remanded it to the Board. On the other hand, if the Board denies the reconsideration motion, the Board would again have before it the question whether BFI should be overruled.

At this point, it seems relatively unlikely the Board will grant the motion for reconsideration in light of the recusal/conflict-of-interest issue looming over the Board, which would thus put the matter back in the hands of the D.C. Circuit Court of Appeals.

In any event, even if the D.C. Circuit Court of Appeals eventually affirms the BFI decision, the new Board would likely have the power to shift back to a more restricted, employer-friendly joint employment test in another test case. The biggest question is when? There are a number of other pending cases that could serve as vehicles to undo BFI, including Worldwide Flight Services, Inc. (ALJD May 31, 2017), Orchids Paper Products, Co. (ALJD September 15, 2017), and Preferred Building Services, Inc. (ALJD September 9, 2016) – all of which center on allegations of unfair labor practices of alleged joint employers. However, the Inspector General’s ethics report, which promoted Hy-Brand’s reversal, may create a potential roadblock at least for the time being. Although the Inspector General’s report applied only to the circumstances surrounding Emanuel and Hy-Brand, the Inspector General took an expansive view of what should require a recusal. The Emanuel controversy is testing the limits of an executive order and White House ethics pledge that requires presidential appointees to recuse themselves from matters involving their previous employers or their own former clients for two years. Some union advocates are even demanding that the Inspector General’s ethics report be read to altogether block Emanuel from ruling on any cases that challenge BFI’s joint employment analysis.

Many Other Obama-Era Rulings Likely Will Be Overruled

While the fate of BFI remains uncertain, a number of other Obama-era rulings are likely to change, including the following:

The Board’s 3-2 Republican majority will likely lead to overturning some of the sweeping decisions of the Obama Board. However, reexamination of these precedents will be highly dependent on the specific case and the composition of the Board deciding the case. While cases overturning prior Board precedent are typically decided by a full five-member panel, many cases are decided by a three-member panel.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Sheppard Mullin Richter & Hampton LLP | Attorney Advertising

Written by:

Sheppard Mullin Richter & Hampton LLP
Contact
more
less

Sheppard Mullin Richter & Hampton LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.