In Hy-Brand Industrial Contractors, Ltd., 365 NLRB No. 156 (Dec. 14, 2017), a three-Member majority of the Board overruled Browning Ferris Industries of California, 362 NLRB No. 186 (2015) and announced a return to the Board’s long-standing analysis for determining joint employment relationships.  On February 9, 2018, however, the Board’s Office of Inspector General (OIG) issued a report criticizing current Board Member William Emanuel’s participation in that decision, in part, because Member Emanuel’s former law firm represents one of the parties in the Browning Ferris matter.

Although neither that party nor any of the other parties are litigants in the Hy-Brand case, the OIG Report asserted that the

wholesale incorporation of the dissent in Browning-Ferris into the Hy-Brand majority decision consolidated the two cases into the same ‘particular matter involving specific parties.’

In conclusion, the OIG Report stated that Member Emanuel should have recused himself from the Hy-Brand case, and that his failure to do so represented a “serious and flagrant problem and/or deficiency in the Board’s administration of its deliberative process….”

In response, by Order dated February 26, 2018, the Board has vacated and set aside its earlier Decision and Order. 366 NLRB No. 26 (Feb. 26, 2018):

The Board’s Designated Agency Ethics Official has determined that Member Emanuel is, and should have been, disqualified from participating in this proceeding. After careful consideration, and exercising the Board’s authority under Section 102.48(c) of the Board’s Rules and Regulations and Section 10(d) of the Act, we have decided to grant the Charging Parties’ motion in part and to vacate and set aside the Board’s December 14, 2017 Decision and Order.

Because we vacate the Board’s earlier Decision and Order, the overruling of the Browning-Ferris decision is of no force or effect.

Given this result, one should expect that Sen. Elizabeth Warren (D-MA) and other allies of Labor will continue to focus attention on the recusal issue in order to prevent three-Member Board majorities from overruling many of the radical departures from precedent handed down by the Board during the Obama Administration.  Employers should be prepared to continue to operate under these new standards for at least the next year or two of the current administration, as the Board wrestles with this issue in the variety of cases awaiting adjudication.