Hunton Employment & Labor Perspectives

The National Labor Relations Board continues to undo its actions overruling the joint employer test of Browning-Ferris Industries, 362 NLRB No. 186 (2015).  Earlier this week the Board vacated its decision in Hy-Brand Industries, the case which had overruled Browning-Ferris.

Shortly after the original Hy-Brand decision, the Board had asked the U.S. Court of Appeals for the District of Columbia Circuit to remand the Browning-Ferris case to the Board.  At the time, the Browning-Ferris case was pending before the court of appeals on the Board’s petition for enforcement and Browning-Ferris’s petition for review, and had been fully briefed and argued.

Now the Board has reversed course and asked the court to recall the mandate it issued in remanding the case to the Board.  In its motion, the Board asks the court to take the case back, stating that “[t]his case presents unique circumstances that warrant recall under the Court’s stringent standards for such action.”  The Board further asked “that the court continue processing this case as it deems appropriate.”

If the court grant’s the Board’s motion, the joint employer issue will be back to square one, with the eventual outcome still in doubt.