On June 6, 2018, the NLRB issued two Orders that put an end to the Hy-Brand case, which briefly changed the NLRB’s standard for determining whether two employers were jointly responsible for violations of federal labor law and collective bargaining. As we explained in previous posts (links), in December 2017 the Hy-Brand Board returned the joint employer standard back to require “direct and immediate” control over the terms and conditions of employment that existed prior to the Board’s 2014 decision in Browning-Ferris Industries. Hy-Brand was a relief to the business community because it ensured that a business would not become a joint employer without actually exercising control over the employment of employees of other companies.

Hy-Brand came crashing down, however, when the Board vacated the decision based on the failure of Board Member William Emanuel to recuse himself due to ethical issues. The NLRB’s Inspector General investigated Emanuel’s links, through his former law firm, to an employer in the Browning-Ferris Industries case and found that he should have recused himself in the matter. The IG’s report found that Emanuel’s participation in Hy-Brand affected the client of his former law firm by overruling Browning Ferris Industries. After vacating the decision, the Board remanded the case for further proceedings.

On remand, the Board found that the employers in Hy-Brand were jointly liable under federal labor law, but not on joint employer grounds. Instead, the Board found that the employers were single employers, meaning, essentially, that their corporate structure was so intertwined that they acted as a single company in terms of control over employment terms. Therefore, the result of the decision was basically the same as the original Hy-Brand decision, but it now has no effect on the Board’s joint employer standard. Thus, the broader and more labor-friendly “share or codetermine” test of Browning-Ferris Industries is still the law of the land.

The Board has now decided that rather than wait for the next case involving joint employment to come onto its docket, it will address this issue by way of rulemaking. For context, the Board rarely promulgates rules and it usually makes rulings on a case-by-case basis, but it does have the power to do so like any other administrative agency. Going forward, the Board will need to publish the rule after drafting it and allow for comment from the public on any new rule it announces before it takes effect.  At this point, we will have to wait and see what happens.  Stay tuned.

Andrew MacDonald is an associate in the firm’s Labor and Employment Department, resident in its Philadelphia office.

 

In General Counsel Memorandum 18-05, General Counsel Peter Robb expressed his views on the use of temporary injunctions under Section 10(j) of the Act. Section 10(j) gives the NLRB the discretion upon issuance of a complaint to seek temporary injunctions against employers and unions (typically employers) in federal district courts to stop alleged unfair labor practices while the case is being litigated before the NLRB. The Region’s argument is that injunctive relief is allegedly necessary to ensure that the Board’s final decision will be meaningful. Thus, the courts can order an employer to stop the alleged unlawful activity before the NLRB ultimately decides the matter.

A district court will order 10(j) injunctive relief when it finds: (1) reasonable cause to believe that an unfair labor practice has been committed or a likelihood of success on the merits; and (2) that ordering the temporary injunction is just and proper. Under the first prong, the courts give the NLRB considerable deference to its belief that a violation has occurred, and frequently rely on a very limited evidentiary record in finding reasonable cause/likely success on merits. The courts effectively need to conclude that the NLRB’s theory of violation is substantial and not frivolous. The second prong looks to see whether remedial failure is likely if the court does not grant the injunction.

If ordered, injunctions can require employers and unions to refrain from certain actions (such as refrain from interfering with employees’ Section 7 rights) or to take certain affirmative actions (such as requiring employers to reinstate employees or to bargain with a union). Although the NLRB does not seek 10(j) relief in most cases, the Obama Board sought 10(j) relief on a more frequent basis than prior Administrations.

In GC Memo 18-05, GC Robb appears to indicate that he will seek 10(j) relief in fewer categories of cases than his predecessor and will require Regions to seek 10(j) relief earlier in unfair labor practice cases.

First, Robb announced that remedial failure is more likely, and 10(j) relief more often appropriate, in cases involving: (1) discharges during organizing campaigns, (2) unfair labor practice charges filed shortly after a union is certified as the employer’s bargaining representative, (3) a successor employer’s refusal to bargain with the representative of the predecessor employer’s employees, and (4) a successor’s refusal to hire the predecessor’s employees. This appears to be a somewhat narrower class of cases than the Obama GC considered in seeking 10(j) relief.

Second, Robb also indicated that Regions should request authorization to seek 10(j) relief promptly once they determine it appropriate and not to wait until after a hearing has been held for the ALJ to decide the case. This makes great sense and stands in sharp contrast to the NLRB’s practice under the Obama Administration where the Board frequently waited until after a record had been developed in a hearing before an ALJ. Waiting until after the administrative record had been developed made it easier for Regions to show likely success on the merits, particularly in those cases where the ALJ already issued a decision, but this was puzzling because it undercut a Region’s argument that a temporary 10(j) injunction was needed on an immediate basis to prevent remedial failure. Under these circumstances, a Region has already waited months, and potentially even more than a year, after an alleged unfair labor practice had been committed and has only then attempted to restrain the alleged misconduct. If time is critical, remedial failure likely occurred prior to the NLRB even seeking 10(j) relief (and thus should have been sought early on). If there is no immediate need, there is likely little risk of remedial failure by waiting until the NLRB decides the case.

One downside for employers contained in GC Robb’s memo is that he urges Regions to pursue 10(j) relief even when the Region is in the midst of settlement discussions, “unless there is a very strong likelihood that the case is going to settle.” But, in reality, this practice will place added pressure on employers to settle cases to the extent the Region alerts the employer that it intends to seek 10(j) relief or that the NLRB has approved the Region’s request for such relief. This is so, because it is difficult to erase the effects of a remedy imposed by temporary injunction if the NLRB later concludes there was no violation of the Act.

Chip Zuver is a former NLRB Attorney and an associate in the firm’s Labor and Employment Department, resident in its Los Angeles office.

On May 29, 2018, the D.C. Circuit asked the NLRB to explain – and justify – why it used a “clear and unmistakable waiver” standard when dealing with a Burns successor setting initial terms and conditions of employment, possibly offsetting its duty to bargain with a union in certain situations. As such, the court partially vacated an April 2017 Board decision holding that a successor employer, Tramont Manufacturing, LLC, violated the Act by laying off 12 workers without first notifying the employees’ union or bargaining over the effects of this layoff decision.

In 2014, Tramont, after acquiring the assets of a bankrupt company, decided to hire many of the predecessor employees and recognize the union, thus becoming a Burns successor. Tramont exercised its legal right as a Burns successor to set initial terms and conditions of employment by issuing an employee handbook that included a section covering layoffs. Then, in 2015, Tramont issued layoff notices to 12 employees without first notifying the union. The union attempted to bargain over the layoffs’ effects, but Tramont refused, which led to the subsequent filings of unfair labor practice charges with the NLRB.

In its ruling, the Board held that Tramont, in not notifying the union of these layoffs and refusing to bargain over its effects, violated the Act. In analyzing the case, the Board rejected Tramont’s argument that the “contract coverage” standard governed the lawfulness of this action and instead applied its “clear and unmistakable waiver” standard. Tramont appealed the decision.

Now, the D.C. Circuit has asked the Board to clarify and explain its use of the “clear and unmistakable waiver” standard when analyzing the bargaining obligations of a Burns successor in relation to the initial terms and conditions it is legally entitled to set. But, notably, the D.C. Circuit did not actually seem convinced that Tramont’s “contract coverage” standard should apply in place of the Board’s “clear and unmistakable waiver” standard:

Where…an employer seeks release from its statutory obligations on the basis of initial employment terms it has itself drafted… it would be perfectly reasonable for the Board to decide as a policy matter to construe those terms under a standard other than the one that would apply to the terms of a bargained for agreement.

Similarly, besides asking for an explanation, the court also opined on the soundness of the Board’s use of a “clear and unmistakable waiver” standard in this context. The court stated that it did not “see how employment terms unilaterally imposed by an employer could ever effect a waiver of bargaining rights by the union” and that “framing that standard in terms of waiver is far from intuitive.” Simply put, the court wants the Board to show their work and further explain why it applied this standard.

Lastly, even if the NLRB abandons its waiver standard in this context on remand, the court noted the Board may still decide that unilaterally imposed employment terms should be narrowly construed, thus leaving Tramont liable for violations under the Act. In this instance, the court asked the Board to respond to Tramont’s position that this outcome would counter Board precedent from 2001 that held a Burns successor did not have a bargaining obligation over the rate of pay offered to its new employees as part of initial terms and conditions it imposed.

In sum, whatever standard the Board decides to apply to the question of how far a Burns successor’s initial employment terms displace the duty to bargain with a union, it must clearly explain its reasoning for applying such standard. More significant, however, this decision will help both management and labor bars as employers and unions will better understand what conduct is legal and not legal under the established, but still evolving, successorship doctrine.

Carlos A. Torrejon is a former NLRB Attorney and an associate in the firm’s Labor and Employment Department, resident in its Morristown office.

Previously, I wrote about the “preemption” problem with the Seattle Ordinance regulating ride-sharing services like Uber and Lyft.  After Seattle passed the Ordinance, the federal Ninth Circuit Court of Appeals quickly stayed the Ordinance pending an appeal.  The Ninth Circuit recently issued its opinion on the case.  Although the law remains stayed due to antitrust law issues (that topic is for another blog…), the court’s decision provided a potentially game-changing decision on the preemptive force of national labor law as it relates to independent contractors.

As explained in my previous post, the National Labor Relations Act, which governs the formation of unions for most employees in the private sector, only covers “employees” and explicitly excludes independent contractors.  Since the ride-sharing drivers are independent contractors, Seattle passed the Ordinance based on the reasoning that, if the NLRA does not cover these workers, then it should be permissible for local government to step in and provide its own collective bargaining regime.  The counterargument, brought by the Chamber of Commerce on behalf of the ride-sharing companies and other interested employers, was that the exclusion of independent contractors from the NLRA’s coverage was purposefully intended to exclude them from any type of collective bargaining regime.

The Ninth Circuit agreed with Seattle on the preemption issue and found that the NLRA does not prohibit local governments from creating their own collective bargaining law covering independent contractors.  The Court found that, in passing the statute, Congress did not intend to prohibit independent contractors from bargaining collectively.  The NLRA only excluded them from coverage of its own provisions.  Moreover, the Court noted that the Ordinance itself provided that any drivers who were found to be employees of a business would be excluded from coverage of the Ordinance and, instead, subject to coverage of the NLRA.

Thus, the Ninth Circuit’s decision gives the “green light” to local governments (or even states) to create collective bargaining laws for independent contractors.  However, as in the Seattle case, local governments and independent contractors must beware of the potential antitrust implications of such arrangements.  It is expected that, regardless of the NLRA preemption holding, interested municipalities will wait for the remainder of the case to run its course on the antitrust issues before creating their own collective bargaining laws.

Andrew MacDonald is an associate in the firm’s Labor and Employment Department, resident in its Philadelphia office.

As is often the case with the NLRB, footnotes include critical information and signal where the NLRB is heading. And, that is certainly the case with the NLRB’s blocking charge policy. On May 9, 2018, in a footnote to an NLRB Order, Board Members Marvin Kaplan and William Emanuel signaled their intent to reconsider the NLRB’s blocking charge policy.

The blocking charge policy is one of the NLRB’s longest standing rules. In a nutshell, the rule allows the NLRB to place in abeyance election petitions where there are outstanding unfair labor practice (“ULP”) charges pending that, if true, could interfere with the employees’ free choice to vote either for or against a union. However, that is not to say that there have not been modifications to this long-established policy. Under NLRB Rules & Regulations, Section 103.20, any party wishing to block an election petition must now file a request that the petition be blocked, along with a request to block the processing of the petition, and simultaneously file a written offer of proof. The Regional Director will hold the election in abeyance if he/she determines that the allegations, if proven, would interfere with employee free choice and prevent a fair election.

Of course, protecting employee free choice is laudable; however, unions frequently use the blocking charges to delay elections seeking to remove the union as the employees bargaining representative in hopes that employee interest in decertification may fizzle out during the period in which the NLRB evaluates the merits of the ULPs. This can be an effective strategy given that the merits of ULPs frequently turn on the credibility of witnesses, and NLRB regional offices will not make credibility resolutions and will instead set a case for hearing before an NLRB administrative law judge. NLRB proceedings typically take months. Consequently, the filing of charges—even meritless ones—usually buy unions months of additional time collecting dues and trying to sway the minds of their membership or to discourage employees eager to rid themselves of the union by delaying the election process in the hope that those opposed to the union may not participate in the eventual decertification election. This, in turn, may enable a union with only minority support to continue representing employees.

In recognition of this, Board Members Kaplan and Emanuel signaled in a footnote that they intend to revisit the rule in a future case. Emanuel stated he believes that employee petitions should not be dismissed or even held in abeyance based on unproven allegations in unfair labor practice charges that are contested. Further, Emanuel and Kaplan are not alone in their desire to modify or do away with the policy, as NLRB General Counsel Peter Robb has noted that he believes that elections should proceed even in the face of unfair labor practice charges but only uphold the election if the charged party is cleared of all charges. Employee and labor groups oppose any such changes.

Still, the NLRB does not necessarily have to wait for the right case to come up; instead, the NLRB could modify its blocking charge policy through rulemaking. The NLRB did this in 2015 with its election rules (often described as “Quickie Election” rules). Given the NLRB is currently considering whether to revise these election rules, the NLRB could chose to modify its blocking charge policy by this route as well.

Chip Zuver is a former NLRB Attorney and an associate in the firm’s Labor and Employment Department in its Los Angeles office.

In Epic Systems Corp. v. Lewis, No. 16-285, 584 U.S. ____ (May 21, 2018), the United States Supreme Court upheld the enforceability of arbitration agreements between employers and employees that require claims to be arbitrated on an individual basis, rather than on a class, collective, or multi-employee basis. Specific to the facts of the cases involved in the Court’s decision, this ruling means that the plaintiffs must individually arbitrate their wage and other employment-based claims against their employers, rather than pursue them in court as a class or collective action on behalf of themselves and others.

As background, for the past few decades, the Court has consistently ruled in favor of strictly enforcing the terms of arbitration agreements under the Federal Arbitration Act (“FAA”). The challengers in the three consolidated cases in Epic Systems attempted to stem this tide by arguing that the National Labor Relations Act (“NLRA”) conflicted with, or at least could be harmonized with, the FAA in terms of the prohibition on class actions in arbitrations because the NLRA inherently protects “concerted activities” by employees. Indeed, the National Labor Relations Board (“NLRB”) had even ruled in 2012 that joining together in a class action was a form of concerted activity that was protected by the NLRA (and subsequently reaffirmed this proposition through its numerous decisions issued in the years following).  Therefore, the challengers sought to use the NLRA and the NLRB’s rulings to invalidate restrictions on class action imposed by the challenger’s arbitration agreements.

However, the Court disagreed. Writing for the majority, Justice Neil Gorsuch, found that the NLRA’s protections were not sufficient to overcome the FAA’s mandate to enforce arbitration agreements by their terms. The NLRA did not show a “clear and manifest” intention by Congress to overrule the clear language of the FAA. In addition, the Court concluded that the NLRB was not owed any judicial deference in its interpretation of the interplay between the NLRA and the FAA and that the FAA governed. On this basis, the Court ruled that the agreements to arbitrate employment related claims on an individual basis must be enforced.

In sum, the cloud of uncertainty surrounding class action waivers in arbitration has been lifted.  These agreements are now fully enforceable as long as their terms do not conflict with “generally applicable contract defenses, such as fraud, duress, or unconscionably” (and, of course, provided Congress does not pass legislation to overrule the Court’s decision).

Andrew MacDonald is an associate in the firm’s Labor and Employment Department, resident in its Philadelphia office.

This past Monday, April 30, marked the conclusion of a weeklong strike conducted by Columbia graduate students at the University’s campus. Timing, as people say, is sometimes everything – especially in an ongoing labor dispute – and here these graduate students scheduled a strike for the last – and busiest – week of the semester.

As such, the strike was expected to be problematic for both professors who rely on graduate students to teach classes, perform research, and grade papers and exams, and for undergraduate students who attend these classes and anticipate receiving grades in a timely fashion. Indeed, there is no denying that the strike was at least somewhat disruptive as reports indicated that several hundred students and professors either moved classes off campus or cancelled them altogether. This, coupled with the fact that the turnout for the strike was greater than expected, is something the union likely considers a victory (in addition to the outside support received from the likes of President of Ireland Michael Higgins, U.S. Congressman Jerry Nadler, and Sex and the City alumna turned NY gubernatorial candidate Cynthia Nixon). In fact, according to an article by the Columbia Daily Spectator (the weekly student newspaper of the University), union organizers and graduate student leaders have already pledged to strike again at some point in the next academic year and have even discussed possible public demonstrations during graduation ceremonies.

Still, the University did not blink and it proceeded with business as usual over the course of the strike. However, as explained in a prior blog post by my colleagues, the University is still currently waiting – and likely hoping – for the graduate students’ union (Graduate Workers of Columbia-United Automobile Workers) to file unfair labor practice charges against it for refusing to bargain over an initial contract. This would then start a litigation and appeals process before the Board and federal court of appeals on the issue of whether graduate students are statutory employees under the Act and, perhaps, even lead to a Supreme Court decision that would settle this matter once and for all. But, doing all of this takes a lot of time and money and that, as well as the fear of an adverse decision, are likely to blame for the union’s failure to file any ULP charges.

Moving forward, unless the University changes its tune and decides to start bargaining with the union (which, at this point, there is a better chance of the Jets winning the Super Bowl!), do not be surprised if similar actions are undertaken by these graduate students down the road. All of this, however, may end up being inconsequential if the proper case comes before the Republican-controlled NLRB and the 2016 Columbia University Board decision that started this mess is overturned. But, with more and more graduate student unions across the country withdrawing their petitions in order to avoid becoming such a vehicle for overturning precedent, it is unclear exactly when this will happen.

Nevertheless, good things do come to those who wait, and ultimately I believe Columbia University – along with the several other private institutions across the country refusing to bargain with their respective graduate student unions – will see the fruits of their labor rewarded when this Board reverses course once again and finds that graduate students are not employees under the Act. Stay tuned.

Carlos A. Torrejon is a former NLRB Attorney and an associate in the firm’s Labor and Employment Department, resident in its Morristown office.

On April 20, 2018, the National Labor Relations Board, by adopting an ALJ’s decision, held that employees who replied in agreement to another employee’s critical group email about the employer’s workplace were engaged in protected concerted activities under the Act. The email discussed wages, work schedules, tip policies, working conditions, and management’s treatment of employees – all of which are protected topics of conversation as they encompass workers’ terms and conditions of employment. Notably, the email specifically addressed the other employees and advised that it was illegal for “management to intimidate” them, among other remarks.

Still, in the course of investigating, the employer ended up terminating each employee who responded positively to the critical email. The employer argued that these employees were not terminated for their responses, but rather were terminated for refusing to be interviewed by the restaurant regarding their concerns about the email and for skipping/walking out on scheduled shifts. In essence, the employer contended that the ALJ expanded the reach of protected concerted activity by finding concerted insubordination to be protected.

Ultimately, the Board held that neither the critical email nor the employees’ responses – which included such statements as “Thank you for standing up for us” and “I agree a 100% as well” – were egregious enough to lose the protections of the Act. The Board further found that the employer’s purported reasons for discharge were pretextual in nature. As such, the Board ordered the restaurant reinstate these employees to their prior positions, provide them with backpay for lost wages, and hang a notice posting at the job location (though compliance in terms of reinstatement and notice posting may be difficult since the restaurant has since closed).

In sum, this case serves as a helpful reminder to tread lightly whenever your employees are discussing terms of employment like wages, working conditions, and their general treatment at work, regardless of the forum (e.g., in-person, social media, or a group email). Here, the restaurant’s reaction to this critical email, and the employees’ responses, was less than ideal as it resulted in the employer terminating each employee within two days of responding to the email.  Notwithstanding legitimate reason(s) for discipline, the optics of this case placed the employer in an uphill battle from the beginning. And this, of course, would likely not have been the outcome had the employer contacted experienced labor attorneys prior to taking any action.

Carlos A. Torrejon is a former NLRB Attorney and an associate in the firm’s Labor and Employment Department, resident in its Morristown office.

Though it may come as a surprise to some employers, the NLRB generally recognizes the right of employees to wear union insignia (pins with union logos, etc.) while at work.  This rule applies to hospitals, but the Board and the courts, in recognition of the sensitive nature of working in medical facilities, have restricted employees’ rights to wear union insignia in “direct patient care areas.”  A recent case, Long Beach Memorial Medical Center, 366 NLRB No. 66 (April 20, 2018), addressed this rule as it applies to hospitals, but also provided a signal that the Board, now with 3-2 Republican-appointed majority, may be willing to change the rule in a future case.

Section 7 of the NLRA grants employees the “right to … form, join, or assist labor organizations … and to engage in … concerted activities for the purpose of collective bargaining or other mutual aid or protection.”  Section 7 has been construed to give employees the right to engage in activity to advance a union cause, including wearing union insignia to demonstrate their support for a union seeking certification or to further its bargaining aims once certified as the employees’ exclusive representative.

Section 7 rights, however, are balanced with the rights of employers to operate their businesses and manage their property.  Under this balancing test, an employer might be able to restrict an employee from wearing an entire outfit covered in union decals, assuming it had a neutral uniform policy.  But, an employer would have great difficulty in attempting to ban a small union pin worn on an employee’s lapel.  The Board has held that an employer seeking to assert a complete ban on union insignia must show “special circumstances,” usually involving a unique set of facts that are not normally present at most places of employment.  Regular uniform policies will not meet this stringent test.

In the medical realm, the balancing test is not applied and, instead, the Board looks to whether the employer’s prohibition on union insignia applies to “direct patient-care areas” or other areas of the hospital in question.  In Long Beach, the Board found that the Hospital’s rule prohibiting union insignia was overbroad because, by its own terms, it was not limited to “direct patient-care areas.”

A bright-line rule against union insignia in direct patient-care areas can streamline the discussion of the legality of a “no-pin” rule and simplify the law for all parties.  By contrast, the traditional balancing test demands that employers show specific facts to demonstrate that their interests override the Section 7 rights of employees.  The Long Beach decision, therefore, was not controversial because it merely applied the test applicable to medical facilities.

However, the (very) short discussion of uniform policies at the end of Member Emanuel’s dissenting opinion highlighted a long-standing disagreement between Democratic and Republican Board members about whether uniform policies constitute “special circumstances” that are strong enough to overcome employees’ Section 7 rights.  Emanuel found that one aspect of the employer’s policy, which applied to name badge lanyards, was limited to direct patient-care areas.  He, therefore, believed that that portion of the rule should have been upheld.  However, Emanuel noted that even if the lanyard rule applied to non-patient care areas, he would have found the restriction lawful as part of a neutral uniform policy.  Emanuel’s inclusion of this topic most likely constitutes a signal to practitioners that the Republican-majority Board will be more receptive to arguments from employers that uniform policies are sufficient to justify a prohibition on union insignia at work.  If this signal proves correct, the Board may be ready to allow employers, especially hospitals, to restrict the wearing of union insignia at work.  Stay tuned.

Andrew MacDonald is an associate in the firm’s Labor and Employment Department, resident in its Philadelphia office.

 

As my colleague Andrew MacDonald blogged on February 27 (here), the Board overturned its test for joint employer liability for the second time in approximately two months when it vacated Hy-Brand Contractors Ltd., 365 NLRB No. 156 (2017), which overruled the Obama Board’s decision in Browning Ferris Industries, 362 NLRB No. 186 (2015). Thus, Browning Ferris is currently law of the land, but perhaps not for long.

Prior to Browning Ferris, the putative joint employer needed to exercise “direct” and “immediate” control of the primary employer’s employees’ wages and working conditions. After Browning Ferris, joint employer liability can be based on that putative joint employer’s “indirect” or “reserved” control of the primary employer’s employees’ wages and working conditions, irrespective whether the putative joint employer ever exercised such control. It is enough that the putative joint employer retains the ability to share or codetermine the primary employer’s employees’ wages and working conditions. This is common in the franchise industry and with businesses that utilize third party service contractors. Thus, business and the management labor bar are anxious for the Board to overrule Browning Ferris and reinstate the “direct” and “immediate” control test.

That time may be near. Law360 published an article on April 24, 2018 (hyperlink)  noting that there are three cases presently before the Board that raise the joint employer issue and may be the proper vehicle for the Board to overrule. The cases are Oxford Electronics and Worldwide Flight Services, Inc., 13-CA-115933, Orchid Paper Products Co., 14-CA-184805, and Preferred Building Services , Inc., and Rafael Ortiz, 20-CA-149353. These three cases are potentially good vehicles to overrule Browning Ferris because it appears neither current Chairman John Ring and Board Member William Emanuel, nor their former law firms represent parties in any of these three cases. Assuming the Board (1) does not rely on the dissent in Browning Ferris (this tripped up Emanuel in Hy-Brand and resulted in Hy Brand’s vacatur) or its now vacated majority decision in Hy-Brand and (2) prospectively applies its new position on the joint employer issue, the Board should be free to overrule Browning Ferris and require “direct” and “immediate” control before branding a business a joint employer. The Board should be able to do this because there would be no basis to argue either Ring or Emanuel have a conflict of interest, real or perceived, as these three cases will have no direct effect on the current Browning Ferris decision or any other case Ring, Emanuel, or their former firms currently have pending before the Board.

That said, do not expect organized labor to sit back and simply allow Browning Ferris to be overruled. There are calls from the labor bar for Emanuel to resign. Should he do that, the Trump Board would not have the necessary three votes to overrule Browning Ferris. However, it seems unlikely Emanuel will resign. Organized labor is alternatively arguing that Emanuel should recuse himself from all cases concerning the joint employer issue based on his firm’s previous involvement in Browning Ferris. However, issue preclusion is likely a nonstarter as the Board has never required its members recuse themselves from considering certain issues, just certain cases in which the member or their firms have been before the Board.   Labor practitioners of all types – labor and management – address a multitude of issues during their careers that come before the Board, so basing recusal on an issue preclusion standard would most likely disqualify anyone with experience from serving on the Board. This would benefit neither labor nor management.

Thus, the Board may have a good opportunity to reverse Browning Ferris some time before the end of this year if it chooses to use one of these cases to reconsider the current joint employer standard.